Commentary Contraception

Despite State Birth Control Mandate, Fordham Law Students Lack Access to Affordable Contraception Even for Medical Reasons

Bridgette Dunlap

Under New York State's law mandating insurance coverage for contraception, Fordham was able to accept that religiously-affiliated entities that want to sell products in the marketplace like insurance and federally-subsidized education must meet the same quality standards as non-religious organizations. Unfortunately, despite state law, Fordham still fails to guarantee access to affordable contraception.

This article–originally submitted as testimony to the the February 16th, 2012 House Committee on Oversight and Government Reform Hearing on Women’s Health and Contraceptive Coverage–is co-authored by Emily Wolf, Fordham University School of Law, Fordham Chapter, Law Students for Reproductive Justice.

For all our coverage of the 2012 House Committee on Oversight and Government Reform Hearing, click here.

For all our coverage of the 2012 Contraceptive Mandate, click here.

We are students of the Fordham University School of Law in New York City. Fordham is a Jesuit-affiliated university, however, our student health insurance covers contraception as required by New York State law. The New York Women’s Health and Wellness Act was passed in 2002 with the goal of promoting women’s health and ending gender discrimination. 

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From our perspective here at Fordham, the suggestion that requiring the non-discriminatory prescription coverage we already enjoy represents some kind of new and unprecedented encroachment on religious freedom seems strange and disingenuous. 

The New York law is not a violation of religious freedom. Fordham didn’t have to go out of business or stop providing prescription coverage. Our institution was able to accept that religiously-affiliated entities that want to sell products in the marketplace like insurance and federally-subsidized education must meet the same quality standards as non-religious organizations.

Unfortunately, even though we have contraceptive coverage thanks to the protections of New York state law, Fordham students still do not have access to affordable contraception. This is because our health centers, where students with University insurance are meant to receive our primary and gynecological care, will not prescribe contraception. So, whether a student needs contraception to prevent pregnancy, treat a medical condition or both – she has to pay a $100 deductible to visit a doctor off-campus for a prescription – even if she already underwent a gynecological exam on-campus in the mistaken belief that Fordham provided standard care. One hundred dollars on top of a monthly copayment is a significant barrier to practicing contraception for a student living on loans. 

The experiences of women at Fordham show that though health exemptions from birth control bans may seem workable in theory, they are not in practice. The Fordham health centers tell us they have a health exception, but students report being turned away despite medical conditions, some of them quite dangerous or painful. Students have been refused contraception despite having endometriosis, severe acne, ovarian cysts, and a high risk of ovarian cancer.

After hearing the stories from many women affected by the no-birth control policy, we decided we needed to address the lack of access to affordable contraception. Last November, our student group, the Fordham Chapter of Law Students for Reproductive Justice, organized a one night off-campus clinic so students could obtain birth control prescriptions. Over forty students met with doctors and around one hundred students came out to show their support. We are extremely grateful for the doctors who provided us treatment free of charge, but it is unfortunate that though we pay $2,300 to $2,400 per year for insurance we have to take up volunteer resources that should go to women who lack insurance and financial resources.

At the clinic, we had the opportunity to talk with smart, thoughtful undergraduates from Fordham’s Bronx and Manhattan campuses. Undergraduates told us in person and in their exit surveys that access to contraception was a problem for them and they wished we had advertised the clinic on their campuses. The impact of the University’s policies on the undergraduates, which I suspect may be even greater than that on the law students, is in fact a major concern driving our efforts. It is extremely important for young women to be able to access comprehensive medical care without feeling judged or censored, regardless of whether they are having sex or plan to anytime soon. Conversation and information help young women to anticipate and make decisions about what kind of sexual experiences they want to have and when. Sex should be something a woman chooses because she wants it, not something that happens to her; a culture of secrecy, and outright denial of the fact that some students are sexually active, is not conducive to informed desicion-making.

Our efforts to improve contraceptive access at Fordham have been met with various iterations of “you should have known” or “it’s you own fault for going to a Catholic school.” This is a problematic idea for a number of reasons. It inaccurately paints Catholics and Catholic institutions as monolithically rigid, unreasonable, and beholden to the Vatican. Catholic institutions can and do embrace people of varying beliefs, religions, sexual orientations and cultures. Fordham University could not attract the caliber of students and faculty it does if it did not. The implication that no Catholic-affiliated institution would provide standard health care or put policies in place that aren’t papally-approved, such as allowing LGBTQ student groups on campus or providing benefits to the same-sex partners of faculty members or funding scholarship contrary to Catholic doctrine, is inaccurate and offensive. It rests on stereotypes of Catholics and ignores the fact that students contract with a particular institution, not a religious hierarchy. 

On the other hand, our work to get Fordham women the healthcare they need has also been met with an extraordinary outpouring of support. Fordham students thank us for fighting for them and send their stories, professors tell us they are proud, and alumni of Fordham and other Catholic universities email their encouragement and advice. 

We sincerely believe that the medical personnel at our health centers would like to provide the care that is most appropriate for their patients. We also believe that Fordham and other Catholic-affiliated institutions would like to do what is in the best interests of their students and employees. However, Catholic-affiliated institutions are subject to significant pressures from influential groups off-campus that purport to speak for Catholics but may not represent the views of Catholic educational institutions, their students or employees. Given this reality, we need laws that require equality in health care access. Our experience at Fordham shows that religiously-affiliated institutions can comply with laws that protect a woman’s individual conscience and simultaneously promote their values and further their missions. 

Analysis Law and Policy

The Supreme Court Could Give Religiously Affiliated Employers Even More Room to Discriminate

Jessica Mason Pieklo

A series of cases working their way through the courts could expand which businesses get a pass for offering employees discriminatory health and retirement benefits.

You may remember the Little Sisters of the Poor—that group of earnest nuns who challenged the process for accommodating religious objections to the birth control benefit in the Affordable Care Act. The Little Sisters, along with dozens of other religiously affiliated nonprofits, have continuously argued that the act of completing a form to be legally excused from complying with the law substantially burdens their religious rights.

Well, the Little Sisters remain tied up in litigation with the Obama administration over birth control, nondiscriminatory insurance coverage, and their religious objections to providing for both. But there’s more at stake here. To be clear, the Sisters are intent on doing everything they can to block comprehensive insurance coverage for their employees, and block third parties from providing it to them as well. But buried in litigation footnotes is a provision of employee benefits law that, if the Sisters and other religiously affiliated organizations get their way, will solidify another pass for discriminatory corporate practices beyond contraception coverage alone.

The Employee Retirement Income Security Act, or ERISA, is the federal law governing employee benefit plans, including retirement accounts and health insurance. Both the Department of Labor (DOL) and the Internal Revenue Service (IRS) are charged with ensuring ERISA compliance, which, as you can imagine, makes ERISA a prime target for conservatives who already hate “big government.”

Employer plans governed by ERISA have a few requirements that particularly draw conservative ire. One mandates that employer-sponsored retirement plans meet certain minimum funding levels by the employer. This is to help those plans be meaningful ways for employees to save for retirement, without putting the entire burden on those workers. Another provision forbids those plans from discriminating in benefits, such as matching a higher percentage of a male employee’s retirement contributions than a female one’s, or providing comprehensive health insurance coverage for men but not women. The ACA’s birth control benefit draws upon this theory.

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However, not all employers are required to follow ERISA. In particular, the statute exempts “church plans” from its requirements. ERISA defines church plans as those “established and maintained … for its employees … by a church or by a convention or association of churches which is exempt from tax under section 501 of the Internal Revenue Code.” Church plans also include those plans maintained by an organization “controlled by or associated with a church or by a convention or association of churches.” The rationale behind the church plan exemption is similar to the rationale behind most religious or ministerial exemptions to other nondiscrimination laws: Religious orders and institutions like churches and synagogues will generally employ people who follow the same religious tenets as they do because those organizations are engaged in spiritual outreach as part of their “business.”

That prohibition on ERISA governing “church plans” is also incorporated into the ACA.

Historically, organizations like the Little Sisters have had a regulatory pass when it came to maintaining retirement plans and insurance coverage that are either underfunded, discriminatory, or both. That’s because both the DOL and the IRS have been generous in their determination of how they interpret “controlled by or associated with a church or by a convention or association of churches.” And if those agencies determine that an organization has a “church plan,” that, in turn, means it won’t be subjected to a tax penalty for not complying with the ACA’s birth control benefit.

Given the explosion of religiously affiliated employers like hospitals and nursing homes, however, the scope of what does and does not qualify as a church plan has become an increasingly important issue. As religiously affiliated employers began to grow well beyond employing people of similar tenets, away from their ministerial core and into marketplace competition with secular, for-profit businesses, it has made less and less sense to allow those employers a pass to discriminate under ERISA.

At least that’s the argument advanced in a flurry of lawsuits challenging the scope of the church plan exemption under ERISA. Those lawsuits include one against Dignity Health Care, the Catholic-affiliated hospital system facing separate lawsuits related to failing to offer comprehensive reproductive health care at its hospitals. According to the allegations in the complaint, Dignity repeatedly underfunded its retirement plan in violation of ERISA. Dignity responded by arguing its plans were church plans and not subject to ERISA oversight.

Neither the district court nor the Ninth Circuit Court of Appeals bought Dignity’s argument, holding there was no way that when Congress created the church plan exception, it intended the exemption to stretch as far as to shield the country’s fifth-largest health-care employer from regulatory oversight.

That question presented in the Dignity case—of just how broadly that exemption extends—could end up before the U.S. Supreme Court next term. The Roberts Court is considering a pair of cases with this exact issue at their center. Both involve religiously affiliated hospitals, and both have appellate court decisions ruling that organizations like Dignity, which are not actually churches nor actually maintained by religious orders, may not qualify for the church plan exemption.

Which brings us back to the Little Sisters, on whose cases these organizations will undoubtedly base some of their own arguments. The Little Sisters do have a church plan. And it should mean that they will never have to comply with the birth control benefit anyway—which would give them no standing to challenge the ACA’s accommodation. But this is not the argument the Little Sisters and their attorneys want the courts or the public to hear. Instead, the litigation has focused on whether or not completing the form for the birth control accommodation would be a substantial burden for the nuns, despite the fact that at this point under ERISA, there is no question that the federal government could penalize the Little Sisters for refusing to comply with the contraception benefit.

However, the Little Sisters are more than just a group of nuns. They own and operate facilities that employ and serve others. The DOL and IRS have, to date, agreed that the Little Sisters benefits plan is in fact a church plan. But that is in part because without switching plan administrators, the question of whether or not their employee benefits package still qualifies for the exemption has not arisen again. If and when the Little Sisters do switch plans or administrators, the status of their benefits exemption will come up.

At some point during oral arguments in March in Zubik v. Burwell, the conglomerate of cases challenging the accommodation process to the birth control benefit, the fact that the Little Sisters had a church plan and would never be subject to having to comply with the benefit did come up. Paul Clement, who represented the nuns, skillfully dodged the question of whether there was a church plan issue for the Little Sisters. Instead of acknowledging that fact—one even established in the record as an assumption the Tenth Circuit Court of Appeals was making earlier in the litigation to move the case along—Clement assured the justices the church plan wasn’t really something the Court needed to concern itself with at the moment.

Maybe that’s because Clement and the nuns were hoping that if nobody noticed the pass given Little Sisters in their challenge to the birth control benefit, nobody would notice when hospitals and nursing homes also argue for the right to provide discriminatory retirement benefits and cite Zubik for their authority to do so. Maybe they didn’t know about the fight brewing in the appellate courts over which enormous corporate entities are shielded from regulatory nondiscrimination laws like provisions in ERISA and the ACA.

That seems unlikely, though, doesn’t it?

While it may be dry as toast, the church plan exemption under ERISA is critically important. As we’ve seen throughout the nonprofit challenges to the birth control benefit, when employers are allowed to opt out, the effect disproportionately falls on poor women and women of color. And the wages offered to hospital and nursing home workers? They hardly are the kind to lift a person up to more stable financial footing. Which is all another way to say that conservatives’ assertions that institutions like Dignity Health fulfill some spiritual mission and should therefore be treated like a church are all smoke and bluster. Instead, these institutions want cover for ongoing attempts to nickel-and-dime their own workers and to discriminate, based on religious beliefs, when it comes to how and whom these institutions serve. And they’re hoping the Roberts Court will give it to them this next term.

Culture & Conversation Violence

Survivor-Activists Ask Colleges to #JustSaySorry

Katie Klabusich

#JustSaySorry is calling on current and prospective students as well as alumni to post on social media that they will withhold donations until those institutions do the bare minimum: “Issue an acknowledgment and apology to students who feel or have felt less valued and less safe because of the way they’ve responded to campus sexual assault.”

A survivor-led and -centered anti-sexual violence campaign kicks off Monday as the organizers and participants ask college and university administrations to #JustSaySorry for failing to protect their students.

Kamilah Willingham and Wagatwe Wanjuki, co-founders of Survivors Eradicating Rape Culture (SERC), launched #JustSaySorry as a way to call out administrations that often technically have policies in place to address sexual assault, but in reality hinder survivors’ healing by never fully (or even partially) accepting blame for their part. Survivors often receive a monthly reminder of that betrayal in the mail or via email, in the form of a student loan bill or school donation request. (Full disclosure: I recently launched a project on which Wanjuki is participating, unrelated to this campaign.)

According to the campaign press release, #JustSaySorry is calling on current and prospective students as well as alumni to post on social media that they will withhold donations until those institutions do the bare minimum: “Issue an acknowledgment and apology to students who feel or have felt less valued and less safe because of the way they’ve responded to campus sexual assault.”

“We want to educate the world about the power of apology and just how deep institutional betrayal hurts us,” Wanjuki told Rewire. “It will also show the true motivations of schools—do they care that survivors are carrying the weight of the harm they caused? Or were we just a number to them, despite what they claim in brochures attracting new students, wooing parents, and soliciting donations? No matter the outcome of the campaign, the true colors of schools will be revealed.”

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The campaign ignited with a Facebook livestream of Wanjuki setting literal fire to an item from Tufts University—the school that used a sudden drop in her GPA due to the trauma she experienced following her assault to expel her rather than support her after she reported her rapist. Six years after her Title IX complaint was filed, Tufts was found in violation of the federal gender parity in education statute for its mishandling of her case. Yet, the university continues to be silent on culpability, fueling ongoing trauma for Wanjuki. She’s set to burn as much Tufts gear as necessary to get its attention and solicit at least an apology.

“Schools have so much power over the course of our lives. When they refuse to support the most vulnerable in our society, they are not being the beacons of knowledge and nurturing that they claim to be. They are merely reinforcing the harms and inequalities that plague our communities,” Wanjuki told Rewire.

Willingham’s story was one of those chronicled in the powerful documentary The Hunting Ground. Still, Harvard’s administration continues to add insult to injury, so she has publicly called it out by name.

“Harvard Law already knew they were violating Title IX when I filed a complaint against them. And when they were eventually found in violation, they were forced to change the procedures through which they readmitted my assailant,” said Willingham.

For her, #JustSaySorry is a “common sense” campaign born out of the repeated disappointments that she and Wanjuki have experienced.

“My rapist just graduated while 19 of my former professors very publicly retaliated against me for speaking out,” she explained.

Willingham acknowledges that there’s no “easy fix” for that trauma, but every healing process needs a first step. She says the campaign will give survivors and allies a way to express their expectations while impressing upon administrations how hurt survivors are when their schools don’t respond appropriately or supportively.

While she concedes it’s possible that administrations who think they’re just protecting their schools might not realize they’ve done anything wrong, Willingham isn’t absolving them.

“Maybe there simply hasn’t been enough incentive for them to apologize,” Willingham said. “They don’t apologize for or acknowledge past failures, but we’re supposed to trust that they’re devoted to changing the administrative culture that has failed and hurt students survivors for so long? Nah. Sounds like institutional gaslighting to me. And gaslighting is an effective way to maintain control over the status quo in unbalanced relationships—which makes me think that schools won’t apologize as long as they think they can get away with it.”

Anyone and everyone is encouraged to participate using the hashtag, watch for on-fire livestreams, pledge a university-related item burning, publicly tell your school that you are diverting donations to #JustSaySorry until they apologize, and stay connected with the campaign for other actions and survivor stories. Survivors and allies will be encouraged to share their stories and create calls to action as the campaign evolves and picks up steam.

“I want to highlight and center the stories of the people who are largely overlooked by the media and society as a whole: the survivors of color, gender-nonconforming survivors, poor survivors, immigrant survivors, the ones who had to drop out of school, and the ones who have a low GPA,” Wanjuki told Rewire.

Both women know from their work on campuses nationwide that apologies have power. So many survivors fall through the cracks, so few administrations do the simplest thing to temper their trauma: apologize.

“I know it would mean the world to me if Tufts just acknowledged that I—someone they were supposed to have nurtured academically—felt discarded and betrayed,” said Wanjuki.

Willingham said she reported her assault because she had faith in the administration at Harvard—that with her assailant’s partial confession in writing it would be a straightforward process resulting in justice.

“Wagatwe and I are both very hurt by and very angry at our alma maters—and still struggling to heal from the trauma of sexual assault that was compounded and extended by institutional betrayal,” she said. “There’s no easy fix for that, but an apology would feel so nice. An apology might help relieve me of the burden of wanting to set fire to every student loan bill or fundraising mailer I get from my school.”

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