Analysis Contraception

Religious Exemptions and Contraceptive Coverage: How Far Can Denial Go and Still Be Constitutional?

Annamarya Scaccia

The Department of Health and Human Services has included contraceptive coverage as essential preventive care under the Affordable Care Act, while exempting organizations with an explicit religious mission from having to comply. For some, this exemption does not go far enough. But how far can religious right organizations go in denying their employees access to essential preventive care?

A change was made to this article at 11:48 am, Friday September 30th to include a missing piece of the following sentence: “The points raised in the United States Conference of Catholic Bishops’ letter may be flawed at best. In its attempt to underscore the narrowness of the religious exemption, the group cites the Church Amendment to the “Health Programs Extension Act of 1973,” as evidence of long-standing federal conscience protections.”

New guidelines applied August 1 by the Department of Health and Human Services (HHS) to the Affordable Care Act, requiring that employers include coverage of women’s preventive care, including birth control have drawn fierce opposition from the religious.

The new guidelines require all new private insurance plans to cover preventive services—including, for example, breast exams and pap smears, maternity care, HPV testing, gestational diabetes screening and breastfeeding support—sans co-payment, co-insurance or a deductible and without cost-sharing. The guidelines, which go into effect as of August 1, 2012, also require coverage without a co-pay of FDA-approved contraception and contraceptive counseling. And there’s the rub. The Guttmacher Institute recently reported that 98 percent of sexually active Catholic women have used modern forms of birth control banned by the Catholic Church hierarchy, yet some Catholic organizations are crying foul over the birth control mandate.

Based on language from conscience clauses found in 28 states, non-profit religious institutions that exist for religious purposes, and primarily employ and serve those who share their religious values can opt out of offering contraceptive coverage in their group health plans. The HHS opened the interim policy for public comment for 60 days since the announcement, which closes on Friday, September 30.

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This option and its interim religious exemption is a point of contention for some religious groups. Last month, the United States Conference of Catholic Bishops (USCCB) sent HHS a 35-page letter detailing how and why both the birth control mandate and conscience clause are inadequate and could be construed as unconstitutional. Around the same time, a group of Catholic scholars and leaders also sent a letter to HHS criticizing the “narrow” language of this religious employer definition. The overall message: expand the criteria to include those inherently religious institutions that serve and employ people of different faiths, like Catholic hospitals, charities and colleges who are not exempted from providing contraceptive coverage.

“Catholic hospitals provide invaluable care for the poor and underserved, often filling in gaps in other kinds of services and coverage. It would be a shame if the requirement to provide insurance that covers birth control got in the way of continuing this mission,” says Lisa Sowle Cahill, professor at Massachusetts’ Jesuit, Catholic university, Boston College, and one of the signers of the letter. “In the case of Catholic hospitals, it is specifically a part of their religious mission to serve all the poor and vulnerable, regardless of religion. I hope that the broader precedent definition of religious institution can be adopted to avoid counterproductive conflict and allow continuation of this mission.”

Proponents of comprehensive women’s health don’t agree. “Because a university was founded by a Catholic entity or that the board of this university is constituted of people of religion, but yet serves the public and employs the public, I find that hard to say that’s a religious institution,”  Judy Waxman, Vice President of Health & Reproductive Rights the National Women’s Law Center told Rewire. “To me, if I work for Georgetown University, [does] that mean that the Catholic teachings apply to my personal life? I don’t think that’s what I’m signing up for.”

“Legally, we think the [exemption] should be gone,” she adds. And if such an expansion was implemented in the final rule, American Civil Liberties Union’s Washington Legislative Office Policy Counsel Sarah Lipton-Lubet believes it would have damaging effects on women’s health, women’s equality, and religious liberty. “Women need access to contraception so that they can choose for themselves whether to use it, how to plan their families, and how to plan their lives,” she says.

She also considers the definition already too broad for what HHS hopes to achieve—that is, respecting the “unique relationship” between a house of worship and its clergy. But as it stands, notes Lipton-Lubet, it would also block contraceptive coverage for lay employees like administrative staff, custodians and organists.

“Under no circumstances should the exception be expanded.  Contraception is a vital part of women’s preventive care,” she adds. “Women need access to contraception to prevent unintended pregnancies, plan the size of their families, plan their lives, and protect their health.” 

 

Religious Exemption and the Constitution

There is, of course, a larger debate surrounding this disputed exemption–the constitutional implication. While the USCCB and other Catholic scholars claim the “too-narrow” religious employer definition violates the First Amendment’s free exercise clause in regards to the excluded religious institutions, insurers, and individuals, the ACLU, Women’s Law Center, Women’s Law Project and other women’s rights groups maintain that it infringes on the First Amendment rights of those women who would benefit from the easier access to contraception.

“Expanding the exception would allow employers to impose their faith on employees, regardless of those individuals’ own beliefs. That’s just wrong on so many levels,” says Lipton-Lubet. “There is no constitutional problem with requiring coverage of contraception.  Allowing those women who need access to contraception to have it is not an infringement on anyone’s religious liberty…People of many faiths work at religiously affiliated hospitals and social service agencies; they know what’s best for themselves and their families – whether and when to use contraception is a personal choice.”

Courts in two of the 20 states that offer exemptions to contraceptive coverage for insurers and employers, New York and California, have found conscience clauses like the HHS interim rule affecting only houses of worship to be constitutional. In 2000, Catholic Charities of Sacramento v. Superior Court of Sacramento County, the Catholic Charities of Sacramento filed a lawsuit against the state of California, challenging the Women’s Contraception Equity Act. The Act requires that California employers include prescription contraceptives in their health care coverage and prescription plans. Catholic Charities did not fall within the provisions of the act’s religious employer exemption, and argued that the Act therefore violated their First Amendment rights. The complaint was rejected by a lower court, a decision subsequently affirmed in 2004 by the California Supreme Court, which upheld WCEA’s constitutionality, and stated that not only does Catholic Charities of Sacramento not qualify for the religious employer exemption, but that the act serves a “compelling state interest of eliminating gender discrimination.”

Like California, New York’s Catholic Charities of Albany, et al v. Gregory V. Serio saw ten Catholic and Baptist organizations (including one Baptist church) challenging the state’s Women’s Health and Wellness Act, which mandated insurance coverage for contraceptives in addition to other women’s health services. According to the suit filed in 2002, the plaintiffs argued that the restrictive requirement infringed on their religious freedoms as enshrined by both the US Constitution and New York Constitution. In 2003, however, the New York Supreme Court dismissed the complaint, granting summary judgment in the defendant’s favor and upholding the act as constitutional. The groups then appealed, and in early 2006, a divided appellate division affirmed the original decision. Appealing once more, the New York Court of Appeals affirmed the decision once again later that year, preserving WHWA as constitutional as applied to the plaintiffs. The US Supreme Court decided not to consider the challenge in 2007.

Likewise, the US Supreme court has dismissed the opinion that the free exercise clause alone can exempt one from neutral, generally applicable laws. In 1982’s United States v. Lee, the US Supreme Court decided that an Amish employer was not constitutionally exempt from paying Social Security taxes on religious grounds because the tax system is a neutral, generally applicable regulatory law. Subsequently, in 1990’s Employment Division, Department of Human Resources of Oregon v. Smith, the Court ruled that unemployment benefits in Oregon could be denied to a fired employee who violated a state prohibition of peyote, despite its use in a religious ritual. At that time, Oregon law prohibited the “knowing or intentional possession” of drugs (peyote is classified as Schedule I, the class for the most dangerous and highly addictive controlled substances), which was applied to the general public, thus making the state’s criminal law neutral and generally applicable “regardless of the religious motivation of the prohibited conduct.” (This has since changed: Oregon now allows an affirmative defense for the use of peyote for religious purposes. Also, the 1996 federal stature, “Traditional Indian Religious Use of the Peyote Sacrament,” as well as many state laws, allow exemptions for Native Americans who use peyote in a “bonafide religious activity.”) To date, the Supreme Court has upheld a First Amendment exemption from generally applicable law only when it is in conjunction with other constitutional protection. In the 1971 case, Wisconsin v. Yoder, the court held that, to ensure parents’ freedom of religion under the Fourteenth Amendment, Amish children could not be required to attend school past the eighth grade.

As stated by HHS and reiterated in succeeding reports, these new contraceptive coverage mandate and, by extension, the religious protection clause are only relative to all new private group or individual insurance plans, thus according to Lipton-Lubet, satisfying the requisite of general applicability and neutrality.

But the First Amendment is a tricky beast. When broken down, there are two fundamental religion clauses in the often-cited amendment that, according to University of Pennsylvania Law School Professor Theodor Ruger, are “somewhat in conceptual tension”—the prohibition of a government-established religion and the protection of free religious exercise. Considering this two provisions, Ruger notes that exemptions for religious individuals from a “generally applicable regulatory statue, such as a health access law,” raises two possible constitutional concerns: “Does it unduly “establish” religion by carving out a free ride for religious individuals? Alternatively, if the exemption is too narrow, as some religious groups claim here, does it burden religious practice?’

“In my view, despite the existence of these background concerns in an argumentative sense, the HHS regulation is legally constitutional on both dimensions,” says Ruger, whose expertise lies in constitutional law, health law, and food and drug regulation. “Numerous federal laws exempt religious practice from general regulatory requirements, so no problem there. On the other hand, the mandate’s applicability to Catholic hospitals does not create a free exercise clause violation, since, in running a hospital, the Church is operating a secular function and subject to lots of general health laws.”

The HHS Guidelines and Discrimination

The points raised in the United States Conference of Catholic Bishops’ letter may be flawed at best. In its attempt to underscore the narrowness of the religious exemption, the group cites the Church Amendment to the “Health Programs Extension Act of 1973,” as evidence of long-standing federal conscience protections. However, it’s a vague correlation. After all, according to The Journal of Clinical Ethics 2010 legal briefing, Conscience Clause and Conscientious Refusal, the Church Amendment only protects federally-funded individuals or facilities from having to conduct abortions or sterilizations on religious grounds, as well as individual providers from employer discrimination regarding their “willingness” to perform such services. Plus, in early 2009, HHS regulations based on the Church Amendment, and the subsequent 1996 Coats and 2005 Weldon Amendments (both of which prohibit discrimination against providers with moral objections to any training or health service) went into effect, augmenting this conscience protection to encompass almost any health service. And, more recently, the Affordable Care Act upholds that abortion coverage does not need to be included in “qualified health plans.” Despite the USCCB’s inaccurate claim that many hormonal contraceptives cause abortion—thus, delineating the overall contraception mandate is discriminatory and in violation of Weldon and the ACA—contraceptive coverage and the right to withhold such is not explicitly implicated.

But this idea of discrimination is also prevalent on side of reproductive rights. HHS simply does not have the lawful authority to implement such an amendment, says Waxman, citing Section 1557 of the Affordable Care Act, which prevents discrimination on the basis of age, sex, race, disability, and national origin “through exclusion from participation in or denial of benefits under any health program or activity.”

“We believe that, in addition to that fact there’s no authority to begin with, [Section] 1557 requires for them to take away this exemption because they are plucking out women’s contraception and putting an exemption just for that,” says Waxman. “We would say that is discrimination based on facts.”

“They can’t make it up out of these laws. Maybe if a different statue passed, but the agency can’t say, ‘We just decided we need to put this in.’ No. They have to follow what the law says…It’s not a legitimate exercise of their authority,” she adds.

The implication of sex discrimination related to denial of contraceptive coverage has been previously explored. In Sylvia A. Law’s detailed 1998 article, “Sex Discrimination and Insurance for Contraception,” the eminent New York University Law School professor argues that the lack of contraceptive coverage in most private health plans covering prescription drugs and devices for men under their plans establishes discrimination on the basis of sex, thus violating Title VII of the 1964 Civil Rights Act, as amended by the Pregnancy Discrimination Act, which prohibits employment discrimination on the basis of race, color, religion, sex and national origin. It’s a position the US Equal Employment Opportunity Commission maintained in 2000 when it ruled in two charges challenging the contraception exclusion that employers providing insurance coverage for blood-pressure medication and impotency treatment but block coverage for prescription contraceptives is in breach of federal anti-discrimination law, rejecting arguments based on cost. In 2009, the EEOC also determined that Belmont Abbey College, a 1,500-student North Carolina-based Catholic seminary, violated those laws by not including contraception in its employee health insurance plan after investigating a complaint filed by eight faculty members (six men and two women) on the school’s removal of abortion, prescription contraception and elective sterilization procedures from its plan. This, however, is not successfully everywhere—in 2007, the Eight US Circuit Court of Appeals in St. Louis declared In Re Union Pacific Railroad Employment Practices Litigation that “employer-based insurance plans’ blanket exclusive of coverage for contraceptives” does not constitute as sex discrimination since it considered contraceptives to be gender-neutral because it’s used by both sexes, and dismissed it’s connection to the PDA because contraception is used prior to pregnancy.

“When you look at the impact on women economically and having to pay out of pocket for prescription contraceptives, it can be a very large amount of money,” says Susan Frietsche, senior staff attorney for the Women’s Law Project, “so there are equality and gender discrimination considerations that come into play as well. I think it clearly overrides whatever hypothetical conscience concerns that corporations might have.”

Still, Cahill doesn’t consider discrimination or First Amendment violation in regards to the religious set’s proposed change to the interim exemption. “[Women] are not being ‘forced’ to adhere to religious values. They can work elsewhere or buy their own contraception,” she says. “If I work at Jewish Children and Family Services and they only serve kosher food in their cafeteria, is that a violation of my right not to be Jewish? I think that would be kind of ridiculous. I could eat elsewhere, work elsewhere or bring my own lunch.”

Waxman dismisses this notion. “In a multicultural society like ours, when the person is being hired to do something that really has nothing to do with the religion, like teach history or be a lab technician in a hospital, and this organization serves the entire public as well, it seems to me to be a stretch that they can delve that far into the personal lives of the employees,” she says.

And that’s where Ruger lands. According to the Philadelphia-based professor, general public policy regulations apply to religious institutions operating like a hospital or health insurance company. “This would be a harder issue if specific individuals were required to perform these services…that would be a bigger imposition on personal conscience,” he says. “But here the mandate goes to the institution as a whole, so that the institution can give the task of providing contraception to those nurses and doctors who do not have conscience objections.”

He also makes a point to note that, while churches “may discriminate against non-believers in their hiring practices,” religious organizations such as Catholic hospitals and universities are prohibited from doing so under the Civil Rights Act. So, although a Catholic diocese could require all priests and clerical staff to practice Catholicism, they cannot, for example, deny employment to Jewish, Hindu or other non-Catholic physicians. Yet this danger of verboten discrimination is very real for the USCCB, which, in its letter, threatened that these organizations will be forced to fire of non-Catholic employees and stop serving non-Catholics if they are required to provide the contraception option, just so they can fit the exemption.

So is there a possible solution that can narrow this gap? For Ruger, while “this clash can’t be bridged,” one way to intercede this mandate and exception is by placing the burden on the institution rather than a particular employee, and individual employees can withdraw from the option on moral grounds “provided that the institution always has alternative staff on call to serve the public.”

And Frietsche agrees. “For me, the question is not whether to honor the religious beliefs of affected individuals, but rather who’s conscience should win out when there’s a conflict,” she says. “When the conflict is between the ‘conscience’ of a corporation and the conscience of an individual, woman whose health and equality are on the line, the individual’s conscience should prevail.”

Analysis Abortion

Legislators Have Introduced 445 Provisions to Restrict Abortion So Far This Year

Elizabeth Nash & Rachel Benson Gold

So far this year, legislators have introduced 1,256 provisions relating to sexual and reproductive health and rights. However, states have also enacted 22 measures this year designed to expand access to reproductive health services or protect reproductive rights.

So far this year, legislators have introduced 1,256 provisions relating to sexual and reproductive health and rights. Of these, 35 percent (445 provisions) sought to restrict access to abortion services. By midyear, 17 states had passed 46 new abortion restrictions.

Including these new restrictions, states have adopted 334 abortion restrictions since 2010, constituting 30 percent of all abortion restrictions enacted by states since the U.S. Supreme Court decision in Roe v. Wade in 1973. However, states have also enacted 22 measures this year designed to expand access to reproductive health services or protect reproductive rights.

Mid year state restrictions

 

Signs of Progress

The first half of the year ended on a high note, with the U.S. Supreme Court handing down the most significant abortion decision in a generation. The Court’s ruling in Whole Woman’s Health v. Hellerstedt struck down abortion restrictions in Texas requiring abortion facilities in the state to convert to the equivalent of ambulatory surgical centers and mandating that abortion providers have admitting privileges at a local hospital; these two restrictions had greatly diminished access to services throughout the state (see Lessons from Texas: Widespread Consequences of Assaults on Abortion Access). Five other states (Michigan, Missouri, Pennsylvania, Tennessee, and Virginia) have similar facility requirements, and the Texas decision makes it less likely that these laws would be able to withstand judicial scrutiny (see Targeted Regulation of Abortion Providers). Nineteen other states have abortion facility requirements that are less onerous than the ones in Texas; the fate of these laws in the wake of the Court’s decision remains unclear. 

Ten states in addition to Texas had adopted hospital admitting privileges requirements. The day after handing down the Texas decision, the Court declined to review lower court decisions that have kept such requirements in Mississippi and Wisconsin from going into effect, and Alabama Gov. Robert Bentley (R) announced that he would not enforce the state’s law. As a result of separate litigation, enforcement of admitting privileges requirements in Kansas, Louisiana, and Oklahoma is currently blocked. That leaves admitting privileges in effect in Missouri, North Dakota, Tennessee and Utah; as with facility requirements, the Texas decision will clearly make it harder for these laws to survive if challenged.

More broadly, the Court’s decision clarified the legal standard for evaluating abortion restrictions. In its 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court had said that abortion restrictions could not impose an undue burden on a woman seeking to terminate her pregnancy. In Whole Woman’s Health, the Court stressed the importance of using evidence to evaluate the extent to which an abortion restriction imposes a burden on women, and made clear that a restriction’s burdens cannot outweigh its benefits, an analysis that will give the Texas decision a reach well beyond the specific restrictions at issue in the case.

As important as the Whole Woman’s Health decision is and will be going forward, it is far from the only good news so far this year. Legislators in 19 states introduced a bevy of measures aimed at expanding insurance coverage for contraceptive services. In 13 of these states, the proposed measures seek to bolster the existing federal contraceptive coverage requirement by, for example, requiring coverage of all U.S. Food and Drug Administration approved methods and banning the use of techniques such as medical management and prior authorization, through which insurers may limit coverage. But some proposals go further and plow new ground by mandating coverage of sterilization (generally for both men and women), allowing a woman to obtain an extended supply of her contraceptive method (generally up to 12 months), and/or requiring that insurance cover over-the-counter contraceptive methods. By July 1, both Maryland and Vermont had enacted comprehensive measures, and similar legislation was pending before Illinois Gov. Bruce Rauner (R). And, in early July, Hawaii Gov. David Ige (D) signed a measure into law allowing women to obtain a year’s supply of their contraceptive method.

071midyearstatecoveragetable

But the Assault Continues

Even as these positive developments unfolded, the long-standing assault on sexual and reproductive health and rights continued apace. Much of this attention focused on the release a year ago of a string of deceptively edited videos designed to discredit Planned Parenthood. The campaign these videos spawned initially focused on defunding Planned Parenthood and has grown into an effort to defund family planning providers more broadly, especially those who have any connection to abortion services. Since last July, 24 states have moved to restrict eligibility for funding in several ways:

  • Seventeen states have moved to limit family planning providers’ eligibility for reimbursement under Medicaid, the program that accounts for about three-fourths of all public dollars spent on family planning. In some cases, states have tried to exclude Planned Parenthood entirely from such funding. These attacks have come via both administrative and legislative means. For instance, the Florida legislature included a defunding provision in an omnibus abortion bill passed in March. As the controversy grew, the Centers for Medicare and Medicaid Services, the federal agency that administers Medicaid, sent a letter to state officials reiterating that federal law prohibits them from discriminating against family planning providers because they either offer abortion services or are affiliated with an abortion provider (see CMS Provides New Clarity For Family Planning Under Medicaid). Most of these state attempts have been blocked through legal challenges. However, a funding ban went into effect in Mississippi on July 1, and similar measures are awaiting implementation in three other states.
  • Fourteen states have moved to restrict family planning funds controlled by the state, with laws enacted in four states. The law in Kansas limits funding to publicly run programs, while the law in Louisiana bars funding to providers who are associated with abortion services. A law enacted in Wisconsin directs the state to apply for federal Title X funding and specifies that if this funding is obtained, it may not be distributed to family planning providers affiliated with abortion services. (In 2015, New Hampshire moved to deny Title X funds to Planned Parenthood affiliates; the state reversed the decision in 2016.) Finally, the budget adopted in Michigan reenacts a provision that bars the allocation of family planning funds to organizations associated with abortion. Notably, however, Virginia Gov. Terry McAuliffe (D) vetoed a similar measure.
  • Ten states have attempted to bar family planning providers’ eligibility for related funding, including monies for sexually transmitted infection testing and treatment, prevention of interpersonal violence, and prevention of breast and cervical cancer. In three of these states, the bans are the result of legislative action; in Utah, the ban resulted from action by the governor. Such a ban is in effect in North Carolina; the Louisiana measure is set to go into effect in August. Implementation of bans in Ohio and Utah has been blocked as a result of legal action.

071midyearstateeligibilitytable

The first half of 2016 was also noteworthy for a raft of attempts to ban some or all abortions. These measures fell into four distinct categories:

  • By the end of June, four states enacted legislation to ban the most common method used to perform abortions during the second trimester. The Mississippi and West Virginia laws are in effect; the other two have been challenged in court. (Similar provisions enacted last year in Kansas and Oklahoma are also blocked pending legal action.)
  • South Carolina and North Dakota both enacted measures banning abortion at or beyond 20 weeks post-fertilization, which is equivalent to 22 weeks after the woman’s last menstrual period. This brings to 16 the number of states with these laws in effect (see State Policies on Later Abortions).
  • Indiana and Louisiana adopted provisions banning abortions under specific circumstances. The Louisiana law banned abortions at or after 20 weeks post-fertilization in cases of diagnosed genetic anomaly; the law is slated to go into effect on August 1. Indiana adopted a groundbreaking measure to ban abortion for purposes of race or sex selection, in cases of a genetic anomaly, or because of the fetus’ “color, national origin, or ancestry”; enforcement of the measure is blocked pending the outcome of a legal challenge.
  • Oklahoma Gov. Mary Fallin (R) vetoed a sweeping measure that would have banned all abortions except those necessary to protect the woman’s life.

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In addition, 14 states (Alaska, Arizona, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maryland, South Carolina, South Dakota, Tennessee and Utah) enacted other types of abortion restrictions during the first half of the year, including measures to impose or extend waiting periods, restrict access to medication abortion, and establish regulations on abortion clinics.

Zohra Ansari-Thomas, Olivia Cappello, and Lizamarie Mohammed all contributed to this analysis.

Analysis Abortion

‘Pro-Life’ Pence Transfers Money Intended for Vulnerable Households to Anti-Choice Crisis Pregnancy Centers

Jenn Stanley

Donald Trump's running mate has said that "life is winning in Indiana"—and the biggest winner is probably a chain of crisis pregnancy centers that landed a $3.5 million contract in funds originally intended for poor Hoosiers.

Much has been made of Republican Gov. Mike Pence’s record on LGBTQ issues. In 2000, when he was running for U.S. representative, Pence wrote that “Congress should oppose any effort to recognize homosexual’s [sic] as a ‘discreet and insular minority’ [sic] entitled to the protection of anti-discrimination laws similar to those extended to women and ethnic minorities.” He also said that funds meant to help people living with HIV or AIDS should no longer be given to organizations that provide HIV prevention services because they “celebrate and encourage” homosexual activity. Instead, he proposed redirecting those funds to anti-LGBTQ “conversion therapy” programs, which have been widely discredited by the medical community as being ineffective and dangerous.

Under Pence, ideology has replaced evidence in many areas of public life. In fact, Republican presidential nominee Donald Trump has just hired a running mate who, in the past year, has reallocated millions of dollars in public funds intended to provide food and health care for needy families to anti-choice crisis pregnancy centers.

Gov. Pence, who declined multiple requests for an interview with Rewire, has been outspoken about his anti-choice agenda. Currently, Indiana law requires people seeking abortions to receive in-person “counseling” and written information from a physician or other health-care provider 18 hours before the abortion begins. And thanks, in part, to other restrictive laws making it more difficult for clinics to operate, there are currently six abortion providers in Indiana, and none in the northern part of the state. Only four of Indiana’s 92 counties have an abortion provider. All this means that many people in need of abortion care are forced to take significant time off work, arrange child care, and possibly pay for a place to stay overnight in order to obtain it.

This environment is why a contract quietly signed by Pence last fall with the crisis pregnancy center umbrella organization Real Alternatives is so potentially dangerous for Indiana residents seeking abortion: State-subsidized crisis pregnancy centers not only don’t provide abortion but seek to persuade people out of seeking abortion, thus limiting their options.

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“Indiana is committed to the health, safety, and wellbeing [sic] of Hoosier families, women, and children,” reads the first line of the contract between the Indiana State Department of Health and Real Alternatives. The contract, which began on October 1, 2015, allocates $3.5 million over the course of a year for Real Alternatives to use to fund crisis pregnancy centers throughout the state.

Where Funding Comes From

The money for the Real Alternatives contract comes from Indiana’s Temporary Assistance for Needy Families (TANF) block grant, a federally funded, state-run program meant to support the most vulnerable households with children. The program was created by the 1996 Personal Responsibility and Work Opportunity Reconciliation Act signed by former President Bill Clinton. It changed welfare from a federal program that gave money directly to needy families to one that gave money, and a lot of flexibility with how to use it, to the states.

This TANF block grant is supposed to provide low-income families a monthly cash stipend that can be used for rent, child care, and food. But states have wide discretion over these funds: In general, they must use the money to serve families with children, but they can also fund programs meant, for example, to promote marriage. They can also make changes to the requirements for fund eligibility.

As of 2012, to be eligible for cash assistance in Indiana, a household’s maximum monthly earnings could not exceed $377, the fourth-lowest level of qualification of all 50 states, according to a report by the Congressional Research Service. Indiana’s program also has some of the lowest maximum payouts to recipients in the country.

Part of this is due to a 2011 work requirement that stripped eligibility from many families. Under the new work requirement, a parent or caretaker receiving assistance needs to be “engaged in work once the State determines the parent or caretaker is ready to engage in work,” or after 24 months of receiving benefits. The maximum time allowed federally for a family to receive assistance is 60 months.

“There was a TANF policy change effective November 2011 that required an up-front job search to be completed at the point of application before we would proceed in authorizing TANF benefits,” Jim Gavin, a spokesman for the state’s Family and Social Services Administration (FSSA), told Rewire. “Most [applicants] did not complete the required job search and thus applications were denied.”

Unspent money from the block grant can be carried over to following years. Indiana receives an annual block grant of $206,799,109, but the state hasn’t been using all of it thanks to those low payouts and strict eligibility requirements. The budget for the Real Alternatives contract comes from these carry-over funds.

According to the U.S. Department of Health and Human Services, TANF is explicitly meant to clothe and feed children, or to create programs that help prevent “non-marital childbearing,” and Indiana’s contract with Real Alternatives does neither. The contract stipulates that Real Alternatives and its subcontractors must “actively promote childbirth instead of abortion.” The funds, the contract says, cannot be used for organizations that will refer clients to abortion providers or promote contraceptives as a way to avoid unplanned pregnancies and sexually transmitted infections.

Parties involved in the contract defended it to Rewire by saying they provide material goods to expecting and new parents, but Rewire obtained documents that showed a much different reality.

Real Alternatives is an anti-choice organization run by Kevin Bagatta, a Pennsylvania lawyer who has no known professional experience with medical or mental health services. It helps open, finance, and refer clients to crisis pregnancy centers. The program started in Pennsylvania, where it received a $30 million, five-year grant to support a network of 40 subcontracting crisis pregnancy centers. Auditor General Eugene DePasquale called for an audit of the organization between June 2012 and June 2015 after hearing reports of mismanaged funds, and found $485,000 in inappropriate billing. According to the audit, Real Alternatives would not permit DHS to review how the organization used those funds. However, the Pittsburgh Post-Gazette reported in April that at least some of the money appears to have been designated for programs outside the state.

Real Alternatives also received an $800,000 contract in Michigan, which inspired Gov. Pence to fund a $1 million yearlong pilot program in northern Indiana in the fall of 2014.

“The widespread success [of the pilot program] and large demand for these services led to the statewide expansion of the program,” reads the current $3.5 million contract. It is unclear what measures the state used to define “success.”

 

“Every Other Baby … Starts With Women’s Care Center”

Real Alternatives has 18 subcontracting centers in Indiana; 15 of them are owned by Women’s Care Center, a chain of crisis pregnancy centers. According to its website, Women’s Care Center serves 25,000 women annually in 23 centers throughout Florida, Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin.

Women’s Care Centers in Indiana received 18 percent of their operating budget from state’s Real Alternatives program during the pilot year, October 1, 2014 through September 30, 2015, which were mostly reimbursements for counseling and classes throughout pregnancy, rather than goods and services for new parents.

In fact, instead of the dispensation of diapers and food, “the primary purpose of the [Real Alternatives] program is to provide core services consisting of information, sharing education, and counseling that promotes childbirth and assists pregnant women in their decision regarding adoption or parenting,” the most recent contract reads.

The program’s reimbursement system prioritizes these anti-choice classes and counseling sessions: The more they bill for, the more likely they are to get more funding and thus open more clinics.

“This performance driven [sic] reimbursement system rewards vendor service providers who take their program reimbursement and reinvest in their services by opening more centers and hiring more counselors to serve more women in need,” reads the contract.

Classes, which are billed as chastity classes, parenting classes, pregnancy classes, and childbirth classes, are reimbursed at $21.80 per client. Meanwhile, as per the most recent contract, counseling sessions, which are separate from the classes, are reimbursed by the state at minimum rates of $1.09 per minute.

Jenny Hunsberger, vice president of Women’s Care Center, told Rewire that half of all pregnant women in Elkhart, LaPorte, Marshall, and St. Joseph Counties, and one in four pregnant women in Allen County, are clients of their centers. To receive any material goods, such as diapers, food, and clothing, she said, all clients must receive this counseling, at no cost to them. Such counseling is billed by the minute for reimbursement.

“When every other baby born [in those counties] starts with Women’s Care Center, that’s a lot of minutes,” Hunsberger told Rewire.

Rewire was unable to verify exactly what is said in those counseling sessions, except that they are meant to encourage clients to carry their pregnancies to term and to help them decide between adoption or child rearing, according to Hunsberger. As mandated by the contract, both counseling and classes must “provide abstinence education as the best and only method of avoiding unplanned pregnancies and sexually transmitted infections.”

In the first quarter of the new contract alone, Women’s Care Center billed Real Alternatives and, in turn, the state, $239,290.97; about $150,000 of that was for counseling, according to documents obtained by Rewire. In contrast, goods like food, diapers, and other essentials for new parents made up only about 18.5 percent of Women’s Care Center’s first-quarter reimbursements.

Despite the fact that the state is paying for counseling at Women’s Care Center, Rewire was unable to find any licensing for counselors affiliated with the centers. Hunsberger told Rewire that counseling assistants and counselors complete a minimum training of 200 hours overseen by a master’s level counselor, but the counselors and assistants do not all have social work or psychology degrees. Hunsberger wrote in an email to Rewire that “a typical Women’s Care Center is staffed with one or more highly skilled counselors, MSW or equivalent.”

Rewire followed up for more information regarding what “typical” or “equivalent” meant, but Hunsberger declined to answer. A search for licenses for the known counselors at Women’s Care Center’s Indiana locations turned up nothing. The Indiana State Department of Health told Rewire that it does not monitor or regulate the staff at Real Alternatives’ subcontractors, and both Women’s Care Center and Real Alternatives were uncooperative when asked for more information regarding their counseling staff and training.

Bethany Christian Services and Heartline Pregnancy Center, Real Alternatives’ other Indiana subcontractors, billed the program $380.41 and $404.39 respectively in the first quarter. They billed only for counseling sessions, and not goods or classes.

In a 2011 interview with Philadelphia City Paper, Kevin Bagatta said that Real Alternatives counselors were not required to have a degree.

“We don’t provide medical services. We provide human services,” Bagatta told the City Paper.

There are pregnancy centers in Indiana that provide a full range of referrals for reproductive health care, including for STI testing and abortion. However, they are not eligible for reimbursement under the Real Alternatives contract because they do not maintain an anti-choice mission.

Parker Dockray is the executive director of Backline, an all-options pregnancy resource center. She told Rewire that Backline serves hundreds of Indiana residents each month, and is overwhelmed by demand for diapers and other goods, but it is ineligible for the funding because it will refer women to abortion providers if they choose not to carry a pregnancy to term.

“At a time when so many Hoosier families are struggling to make ends meet, it is irresponsible for the state to divert funds intended to support low-income women and children and give it to organizations that provide biased pregnancy counseling,” Dockray told Rewire. “We wish that Indiana would use this funding to truly support families by providing job training, child care, and other safety net services, rather than using it to promote an anti-abortion agenda.”

“Life Is Winning in Indiana”

Time and again, Bagatta and Hunsberger stressed to Rewire that their organizations do not employ deceitful tactics to get women in the door and to convince them not to have abortions. However, multiple studies have proven that crisis pregnancy centers often lie to women from the moment they search online for an abortion provider through the end of their appointments inside the center.

These studies have also shown that publicly funded crisis pregnancy centers dispense medically inaccurate information to clients. In addition to spreading lies like abortion causing infertility or breast cancer, they are known to give false hopes of miscarriages to people who are pregnant and don’t want to be. A 2015 report by NARAL Pro-Choice America found this practice to be ubiquitous in centers throughout the United States, and Rewire found that Women’s Care Center is no exception. The organization’s website says that as many as 40 percent of pregnancies end in natural miscarriage. While early pregnancy loss is common, it occurs in about 10 percent of known pregnancies, according to the American Congress of Obstetricians and Gynecologists.

Crisis pregnancy centers also tend to crop up next to abortion clinics with flashy, deceitful signs that lead many to mistakenly walk into the wrong building. Once inside, clients are encouraged not to have an abortion.

A Google search for “abortion” and “Indianapolis” turns up an ad for the Women’s Care Center as the first result. It reads: “Abortion – Indianapolis – Free Ultrasound before Abortion. Located on 86th and Georgetown. We’re Here to Help – Call Us Today: Abortion, Ultrasound, Locations, Pregnancy.”

Hunsberger denies any deceit on the part of Women’s Care Center.

“Clients who walk in the wrong door are informed that we are not the abortion clinic and that we do not provide abortions,” Hunsberger told Rewire. “Often a woman will choose to stay or return because we provide services that she feels will help her make the best decision for her, including free medical-grade pregnancy tests and ultrasounds which help determine viability and gestational age.”

Planned Parenthood of Indiana and Kentucky told Rewire that since Women’s Care Center opened on 86th and Georgetown in Indianapolis, many patients looking for its Georgetown Health Center have walked through the “wrong door.”

“We have had patients miss appointments because they went into their building and were kept there so long they missed their scheduled time,” Judi Morrison, vice president of marketing and education, told Rewire.

Sarah Bardol, director of Women’s Care Center’s Indianapolis clinic, told the Criterion Online Edition, a publication of the Archdiocese of Indianapolis, that the first day the center was open, a woman and her boyfriend did walk into the “wrong door” hoping to have an abortion.

“The staff of the new Women’s Care Center in Indianapolis, located just yards from the largest abortion provider in the state, hopes for many such ‘wrong-door’ incidents as they seek to help women choose life for their unborn babies,” reported the Criterion Online Edition.

If they submit to counseling, Hoosiers who walk into the “wrong door” and “choose life” can receive up to about $40 in goods over the course their pregnancy and the first year of that child’s life. Perhaps several years ago they may have been eligible for Temporary Assistance for Needy Families, but now with the work requirement, they may not qualify.

In a February 2016 interview with National Right to Life, one of the nation’s most prominent anti-choice groups, Gov. Pence said, “Life is winning in Indiana.” Though Pence was referring to the Real Alternatives contract, and the wave of anti-choice legislation sweeping through the state, it’s not clear what “life is winning” actually means. The state’s opioid epidemic claimed 1,172 lives in 2014, a statistically significant increase from the previous year, according to the Centers for Disease Control and Prevention. HIV infections have spread dramatically throughout the state, in part because of Pence’s unwillingness to support medically sound prevention practices. Indiana’s infant mortality rate is above the national average, and infant mortality among Black babies is even higher. And Pence has reduced access to prevention services such as those offered by Planned Parenthood through budget cuts and unnecessary regulations—while increasing spending on anti-choice crisis pregnancy centers.

Gov. Pence’s track record shows that these policies are no mistake. The medical and financial needs of his most vulnerable constituents have taken a backseat to religious ideology throughout his time in office. He has literally reallocated money for poor Hoosiers to fund anti-choice organizations. In his tenure as both a congressman and a governor, he’s proven that whether on a national or state level, he’s willing to put “pro-life” over quality-of-life for his constituents.