Commentary Religion

On Contraceptive Coverage, It’s Not Up to Obama to Decide What is More “Catholic”

Frances Kissling

The President seems unaware of the fact that Catholics who matter have disagreed with the Vatican’s current prohibition on contraception. Catholics, including institutions within the Catholic community, are free to follow their conscience on contraception. It is not up to the Obama administration to decide what action is more “Catholic" on the matter of contraception.

See all our coverage of the Birth Control Mandate 2011 here.

This article was amended at 2:22 pm Friday, November 25th to add a missing paragraph and missing words in three sentences.

When it comes to contraception, Catholics have stopped listening to popes, bishops and other institutional leaders.  It seems the only person left listening is President Obama. Obama, however, lacks the theological training—and it would seem the scholarly advice—needed to figure out if the bishops and various hospitals, universities, and social service agencies clamoring for a broadened “religious exemption” from new federal regulations really need them in order to be good Catholics. The regulations require insurance plans offered by employers to cover contraception without a co-pay, although they exempt churches and other specifically religious institutions from the requirement. The United States Conference of Catholic Bishops and other groups have been lobbying for a much broader exemption.

The President seems unaware of the fact that Catholic disagreement with the ban on birth control goes far beyond the average Catholic layperson. Some bishops, many priests, religious orders, theologians and church-related groups have publicly and privately disagreed with blanket prohibition of contraception. All of them, individuals and institutions, are free to follow their conscience on contraception and there is ample evidence that many of the very groups asking for an exemption from the new federal regulations have not followed church regulations religiously. Some within the organizations may agree with the ban, but not all, and none are required to do so.   

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Of course, it would take courage for organizations such as the Catholic Health Association (which sent a letter to the Department of Health and Human Services in September supporting a broader exemption) or Catholic Charities to publicly buck the U.S. bishops,  just follow the law and give their employees health insurance that makes it more possible to avoid pregnancies they cannot afford or do not want; but after all, being a Catholic is all about courage and helping the poor and marginalized. A fair number of employees of Catholic institutions are low-income workers, struggling to get by on a minimum wage. We Catholics are taught to follow our conscience rather than the positions of the Catholic church, even if it means getting kicked out of the church.  If Obama’s current religious advisers don’t know that, all he has to do is call one of the most trusted of Catholic theologians, Fr. Richard McBrien of Notre Dame. McBrien will repeat what he has said in his widely used text Catholicism:

If, after appropriate study, reflection and prayer, a person is convinced that his or her conscience is correct, in spite of a conflict with the moral teachings of the church, they not only may but must follow the dictates of their conscience rather than the teachings of the church.

Centuries earlier Thomas Aquinas said the same thing.  Yet, the Catholic-affiliated institutions asking for a religious exemption insist that corporations, like persons, have a conscience.

There is every indication that the conscience of these institutions tells them the church prohibition on contraception is wrong. Survey data and the behavior of these institutions evidence widespread disagreement with the official, but not infallible prohibition. Modest due diligence on the part of the administration before it grants a broader exemption is called for. They would discover that it is not only ordinary Catholics who believe birth control results in responsible parenthood and healthier relationships (98 percent of sexually-active Catholic women have used methods of birth control prohibited by the Vatican), but also bishops conferences, priests and theologians worldwide. The administration would also find numerous examples of “Catholic” agencies that have disregarded the prohibition and are providing or have provided contraception, including contraceptive sterilization.

That foundation of dissent from the 1968 Encyclical “Humanae Vitae,” which dashed Catholic hope of a new openness on sex and reproduction, was found in the statement of the Vatican spokesperson, Msgr.F. Lambruschini who assured reporters that it as not infallible a statement not contradicted by the Vatican. He then disturbed many of the world’s bishops by claiming the encyclical required “the assent of the faithful.”

That demand for assent to a non-infallible teaching opened a floodgate of commentary by Bishops’ Conferences around the world, hedging their bets on the encyclical and expressing sympathy with Catholics who decided not to follow it. The Canadian bishops wrote:

In accordance with the accepted principles of moral theology… persons who have tried sincerely but without success to pursue a line of conduct in keeping with the given directives, may be safely assured that whoever honestly chooses that course which seems right to him does so in good conscience. 

The Dutch bishops were more forthright. All nine met and issued a statement that said they “consider that the encyclical’s total rejection of contraceptive methods is not convincing on the basis of the arguments put forward.” If the Dutch bishops did not find the Catholic prohibition on birth control convincing who is the President to de facto affirm a Catholic doctrine by providing some Catholics with an exemption from public policy mandates supported by popular, scientific and medical opinion?

The granting of an exemption from regulations that are in the best interest of public health and enhance the lives especially of women should never be a political act, but rather a careful, factual appraisal of an urgent and clear religious claim.

Many Catholic religious leaders have conducted that appraisal and found Humanae Vitae wanting. French, German, British, Belgian, and other bishops, while cautious not to openly challenge the teaching itself, issued statements that stressed the right of Catholics to follow their conscience. U.S. bishops, as always eager to demonstrate their loyalty to Rome, towed the line. American priests and theologians were far less constrained. Some theologians and priests immediately issued a Statement of Conscience that rejected Humanae Vitae. The authors felt so strongly that they published the statement in the Washington Post, leading D.C. Cardinal Patrick O’Boyle to punish about 40 of its signers who reported to him. The courage shown by those theologians and priests would be welcome among the leaders of today’s high-powered Catholic charities.

Among the signers was a revered DC Jesuit, Horace McKenna. Fr. McKenna was a passionate advocate of the poor who eventually founded D.C.’s SOME (So Others Might Eat). Based on his experience of hearing the confessions of DC’s poorest Catholics, he made it clear to Cardinal O’Boyle that he would tell them in confession that they were not bound to follow the prohibition. In short order, the Cardinal stripped him the right of hearing confessions.

In order to avoid punishment and conflict, most dissent on contraception by Catholic agencies is quiet. Catholic social services agencies treating migrant workers have had contracts with Planned Parenthood to provide contraception for their clients; Catholic hospitals allow doctors who have offices on their premises to prescribe birth control, some mergers between Catholic and non-Catholic hospitals accommodate family planning – and historically even found a way to provide contraceptive sterilization. Some deals fly under the radar and survive; others are squashed.

The bishops and cardinals have not changed.  Unfortunately, there are few Horace McKennas left who will stand up for the poor against the tired efforts of bishops to demand public policy that conforms to their narrow view of what it means to be Catholic. If Horace McKenna were president of Catholic University or ran Catholic Charities instead of Larry Snyder, he’d be lobbying the bishops to provide birth control for poor women and migrant workers rather than fighting for the right to deny janitors, college students and healthcare aides insurance for contraception. He certainly would not be supporting the bishops, who, in the face of an Amnesty International report on the immorally-high rate of maternal death in the United States and the increasing poverty of women and children coldly claimed that pregnancy was not a disease and contraception not preventive medicine.

Today’s bishops are a cold-hearted, power-hungry lot.  Not a Raymond Hunthausen among them. In 1986, Archbishop Raymond Hunthausen of Seattle was charged by the Vatican with allowing sterilizations to be provided in the diocese’s hospitals–-as well as lack of firmness on altar girls and gays. He was, for a time, denied the right to run his diocese; Bishops Donald Wuerl was appointed as “co-adjutor” of the diocese to ensure orthodoxy. Wuerl has risen to the rank of Cardinal and now presides over one of the poorest of the dioceses, Washington D.C. In the church today, only orthodoxy is rewarded.

The heavy hand of the Vatican also came down on the Sisters of Mercy. In 1980 after a five-year study, the Sisters, who then ran one of the largest hospital systems in the United States (only the Veterans Administration was larger) , decided that good medical care included providing postpartum contraceptive sterilization when women requested it. To deny them would subject the women to a second medical risk if they were sterilized at a later date. The Vatican got wind of the possible change in policy and threatened to put the whole community in “receivership” and take over their hospitals, schools, and everything else if they did not change their mind and prohibit sterilization. The Sisters capitulated, fearing greater harm to their patients if the Vatican were in charge.

Can the Obama administration decide which action was more “Catholic,” the Vatican’s power grab, or the sisters desire to provide women with the safest medical care? Can or should the state get itself in a position of closely scrutinizing the validity of religious and moral claims for an exemption from public policy decisions?  We have just such a process in place for deciding whether a request to be exempt from military service: The state decides on a case-by-case basis if the claim is genuine or motivated by fear, laziness, or other less-than-honorable reasons. If we are to grant broad exemptions to religious institutions, should not a similar process be used? 

Best Obama stay out of the internal theological disagreements Catholics have about reproductive health. Best he focus on implementing the long-standing policy consensus that family planning is essential to women’s health and empowerment and contributes to the social and economic wellbeing of all. The religious exemption the HHS has drafted which exempts organizations that have the inculcation of religion as their primary purpose and which employ and serve primarily members of their own faith respects unambiguous religious institutions.  Combined with the conscience protection offered to individuals it is more than adequate protection of religious liberty.


These groups are asking you to join them in telling the White House not to capitulate to the United States Conference of Catholic Bishops and throw women under the bus on contraceptive coverage:

Catholics for Choice

National Women’s Law Center

Physicians for Reproductive Choice and Health

Feminist Majority Foundation

Emily’s List

Planned Parenthood Federation of America

NARAL Pro-Choice America

News Human Rights

Lawsuit: Religious Groups Are Denying Abortion Care to Teen Refugees

Nicole Knight Shine

The suit accuses the federal government of paying millions to religious grantees that refuse to provide unaccompanied minors with legally required reproductive health services.

Two years ago, 17-year-old Rosa was raped as she fled north from her home country in Central America to the United States. Placed in a Catholic shelter in Florida, the teen learned she was pregnant, and told shelter officials that if she couldn’t end the pregnancy, she’d kill herself. She was hospitalized for suicidal thoughts. Upon her release, the facility in which she’d been originally placed rejected her because of her desire for an abortion, according to a federal lawsuit filed Friday. So did another. Both, reads the lawsuit, were federal contractors paid to care for unaccompanied minors like Rosa.

Rosa’s story is one in a series sketched out in a 16-page complaint brought by the American Civil Liberties Union (ACLU) against the U.S. Department of Health and Human Services (HHS). The suit accuses the federal government of paying millions to religious grantees—including nearly $20 million over two years to the U.S. Conference of Catholic Bishops (USCCB)—that refuse to provide unaccompanied minors with legally required reproductive health services, including contraception and abortion. The grantees are paid by the federal Office of Refugee Resettlement (ORR) to house and care for young refugees.

The lawsuit, brought in U.S. District Court in San Francisco, amounts to a fresh test of the degree to which Catholic organizations and other faith-based groups can claim exemptions from federal laws and regulations on religious grounds.

“Religious liberties do not include the ability to impose your beliefs on a vulnerable population and deny them legal health care,” said Jennifer Chou, attorney with the ACLU of Northern California, in a phone interview with Rewire. “The government is delegating responsibility … to these religiously affiliated organizations who are then not acting in the best interest of these young people.”

Mark Weber, a spokesperson for the HHS, which includes the ORR, told Rewire via email that the agency cannot comment on pending litigation.

Escaping turmoil and abuse in their home countries, young refugees—predominantly from Central America—are fleeing to the United States, with 33,726 arriving in 2015, down from 57,496 the year before. About one-third are girls. As many as eight in ten girls and women who cross the border are sexually assaulted; it is unknown how many arrive in need of abortion care.

The federal ORR places unaccompanied minors with organizations that are paid to offer temporary shelter and a range of services, including reproductive health care, while the youths’ applications for asylum are pending. But documents the ACLU obtained indicate that some groups are withholding that health care on religious grounds and rejecting youths who request abortion care.

The 1997 “Flores agreement” and ORR’s contracts with grantees, which the ACLU cites in its lawsuit, require referrals to “medical care providers who offer pregnant [unaccompanied immigrant minors] the opportunity to be provided information and counseling regarding prenatal care and delivery; infant care, foster care, or adoption; and pregnancy termination.”

In 2016, the federal government awarded 56 grants to 30 organizations to provide care to unaccompanied minors, including 11 that the ACLU claims impose religious restrictions on reproductive health care.

In one case, ORR officials struggled to find accommodations for 14-year-old Maria, who wanted to end her pregnancy, according to the complaint. An ORR official wrote, according to a document the ACLU obtained, that the agency would have liked to transfer Maria to Florida to be near family, but “both of the shelters in Florida are faith-based and will not take the child to have this procedure,” meaning an abortion.

In another, the complaint reads, 16-year-old Zoe was placed with Youth for Tomorrow, a faith-based shelter in Virginia, where she learned she was pregnant. She asked for abortion counseling, which was delayed nearly two weeks, the complaint says. Learning of her decision to end the pregnancy, Youth for Tomorrow asked to transfer Zoe elsewhere because of its abortion prohibition, even though Zoe said she was happy at the shelter.

For vulnerable youths, such transfers represent a form of “secondary trauma,” according to the ACLU’s Chou.

“These women have already endured so much,” she told Rewire. “The process of transferring these youths from shelter to shelter tears them away from their only existing support system in the U.S.”

Federal officials, according to the complaint, were aware that the religious grantees would withhold abortion referrals. In one case, the Archdiocese of Galveston-Houston was awarded more than $8 million between 2013 and 2016, although it stated in its grant application that rape survivors wouldn’t be offered abortion care, but instead permitted to “process the trauma of the rape while also exploring the decision of whether to keep the baby or plan an adoption.”

The lawsuit also claims that a contract with the U.S. Conference of Catholic Bishops included language requiring unaccompanied minors who were pregnant to be given information and counseling about pregnancy termination, but the ORR removed that language after the USCCB complained.

The USCCB did not respond to Rewire‘s request for comment. But in a letter last year to the ORR, the USCCB and five religious groups, including some ORR grantees, wrote they could not facilitate health-care services for unaccompanied minors that run contrary to their beliefs.

The lawsuit is the second the ACLU has filed recently against the federal government over religious privileges.

Last month, the ACLU filed a Freedom of Information Act suit demanding that the federal Centers for Medicare & Medicaid Services release complaints against federally funded Catholic hospitals, where patients have reported being denied emergency medical care in violation of federal law.

In 2009, the ACLU also sued the federal government for allowing USCCB to impose religious restrictions on a taxpayer-funded reproductive health program for trafficking survivors. In 2012, a district court ruled in the ACLU’s favor, and the government appealed. The First Circuit Court of Appeal later dismissed the case as “moot” because the government did not renew USCCB’s contract.

News Health Systems

Illinois Bill: Catholic Hospitals Must Inform Patients Where They Can Obtain Denied Care

Nicole Knight Shine

The legislation amends the state Health Care Right of Conscience Act to require religiously affiliated facilities to inform patients in writing about health-care providers "who they reasonably believe" offer procedures that the institutions will not perform.

Religiously affiliated hospitals in Illinois must advise patients where they can find treatments that the institutions won’t offer on religious grounds, under new legislation sitting on the governor’s desk.

The patient information measure, SB 1564, comes at a time when almost about 30 percent of hospital beds in the state—and one in six in the nation—are in Catholic institutions that bar certain reproductive health and end-of-life treatments, according to recent figures from the advocacy group MergerWatch.

The legislation amends the state Health Care Right of Conscience Act to require religiously affiliated facilities to inform patients in writing about health-care providers “who they reasonably believe” offer procedures that the institutions will not perform, or to refer or transfer patients to those alternate providers. Hospitals must do this in response to patient requests for such procedures. The legislation cleared the state house on a 61-54 vote and the senate on a 34-19 vote. Democrats control both chambers.

The office of Illinois Gov. Bruce Rauner (R) did not respond to request for comment on whether he would sign the bill.

Catholic facilities often follow U.S. Conference of Catholic Bishops religious directives  that generally bar treatments such as sterilization, in vitro fertilization, and abortion care. The federal Church Amendment and some state laws protect these faith-based objections.

Even so, growing concerns over facilities that deny treatment that patients want—and that doctors advise—has recently prompted lawmakers in Illinois, Michigan, and Washington state to advance patient information measures.

A Michigan lawsuit now on appeal alleges a Catholic facility caused unnecessary trauma by denying a patient treatment. In 2010, then-18-weeks pregnant Tamesha Means arrived at a Catholic hospital, Mercy Health Partners in Muskegon, Michigan, bleeding and miscarrying. On two occasions, the hospital turned away Means, as Rewire reported. It wasn’t until Means started delivering on her third hospital visit that she received treatment.

The Illinois legislation represents a compromise among the Illinois Catholic Health Association, the Illinois State Medical Society, and the Illinois affiliate of the American Civil Liberties Union (ACLU), representatives from the groups told Rewire.

Lorie Chaiten, director of the ACLU of Illinois’ Reproductive Rights Project, said in an online statement that the legislation “protects patients when health care providers exercise religious refusals.”

Research indicates that patients aren’t always aware that religiously affiliated facilities don’t provide a full spectrum of reproductive health services, according to a 2014 paper published in Contraception.

Patrick Cacchione, executive director of the Illinois Catholic Health Association, said the organization, which represents the state’s 43 Catholic hospitals, opposed an early version of the bill requiring religious health-care facilities to give patients a written list of known medical providers that perform the treatments that the religious institutions oppose.

Cacchione said such a direct referral would have made Catholic hospitals “complicit.”

“We will provide all the information you need, but we will not make a direct referral,” he told Rewire in a phone interview Monday. The new version of the legislation does not require hospitals to confirm that providers perform the treatments; the facilities must only have a “reasonable belief” that they do.

He said Illinois hospitals are already doing what the legislation now requires.

Approximately one in five doctors surveyed at religiously affiliated institutions “had experienced conflict with the institution over religiously based patient care policies,” according to the 2010 paper, “Religious Hospitals and Primary Care Physicians: Conflicts Over Policies for Patient Care,” published in the Journal of General Internal Medicine.

In an emailed statement, Dr. Thomas M. Anderson, a Chicago radiologist and president of the Illinois State Medical Society, told Rewire, “The Society strongly believes physicians should be able to exercise their right of conscience and changes made to SB 1564 protect that right.”