Analysis Contraception

Self-Certification and the Contraceptive Coverage Rule: What Does it Mean for an Institution to “Hold Itself Out as Religious?”

Bridgette Dunlap

Some religiously-affiliated institutions characterize themselves as "secular" when recruiting or seeking public funding but "church-controlled" when demanding exemptions from the law, such as the birth control benefit. Potential employees, students, and patients—as well as taxpayers generally—deserve to know who they are dealing with.

The Obama administration is accepting comments from the public until April 8th on the Notice of Proposed Rule-Making for the birth control benefit or contraceptive coverage rule. The proposed rule amends the exemption for houses of worship and their affiliates and adds an accommodation for other non-exempt non-profits opposed to birth control.

The accommodation requires that insurance companies offer separate contraceptive coverage directly to the employees of objecting organizations at no additional cost. To take advantage of the accommodation, an organization need only self-certify to its health insurer or plan administrator that it is a non-profit opposed to some of the required contraceptive services and that it “hold[s] itself out as a religious organization.”

It is not enough for an institution seeking special treatment to simply assert that it holds itself out as religious. I expect the Obama administration is loathe to define what it means to be a religious organization or police whether an institution is in fact holding itself out as such, and rightly so.  Nevertheless, the institution should have to make a statement describing how it holds itself out as religious and what that religiousness entails. This statement should be made easily available to the public and organizations should have give to notice of it to those with whom it seeks to contract, such as employees, students, patients, and funders.

This is necessary due to a pattern of religiously-affiliated institutions characterizing themselves one way when recruiting or seeking public funding and another when demanding to be exempt from laws that govern secular institutions. The trend in First Amendment Establishment Clause jurisprudence has permitted increasing public funding for religious organizations. This means we need whatever protections the free market can provide individuals from the imposition of religion by institutions active in the public sphere. We can only avoid involvement with institutions that will discriminate on the basis of religious control if we know which institutions those are.

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To understand some particularly flagrant examples of religiously-affiliated institutions trying to have it both ways, we turn to a bit of state constitutional law. Over 37 state constitutions contain explicit prohibitions on the use of public money for religious institutions or instruction. New York is among them and its Constitution prohibits public funding of any educational institution “wholly or in part under the control or direction of any religious denomination.”

In the mid-60s many private universities throughout the country were in dire financial straits. New York sought to rescue its private universities with taxpayer funding through a program known as “Bundy aid.” However, giving public funds to religiously-controlled universities was clearly unconstitutional. So religious universities, particularly Catholic ones, underwent re-organizations to separate themselves from the control of their founding religious orders and other church authorities and endeavored to become more suitable places for people of any or no faith to work and study. By becoming non-sectarian, while maintaining only a religious affilation, they qualified for public funding.  The motivation behind secularization was not exclusively financial, but part of a larger attempt by Catholic universities to strengthen their academic and intellectual legitimacy.

By accepting funds each year, a New York college makes a representation to the state that it is an independent institution free from religious control. Despite this, a number of universities receiving Bundy aid, have asserted that they are church-controlled in order to be free from various generally applicable laws.

In 2010, adjunct professors at Manhattan College sought to unionize. To block them, Manhattan College claimed it was not subject to the jurisdiction of the National Labor Review Board because it is “church-operated.” Among the evidence on which the NLRB board relied in rejecting the claim Manhattan College holds itself out as a religious institution was the fact that Manhattan College deliberately eliminated church control to get Bundy aid and continues to claims to be non-sectarian by accepting it.

In 2009, St. John’s University argued it was exempt from the Americans with Disabilities Act because it is “controlled by a religious organization.” Prior to that, St. John’s successfully argued it was eligible for an exemption from New York’s Human Rights Law for the same reason. In agreeing that St. John’s is controlled by a religious organization, the Court did not take notice of the fact that St. John’s represents to the state that it is not controlled, even in part, by a religious organization in order to get taxpayer funding each year.

Multiple universities that receive Bundy aid have health policies that are controlled by the U.S. Conference of Catholic Bishops through the USCCB’s Ethical and Religious Directives for Catholic Health Care Services.  The Directives are 43 pages long and as detailed as a statute. These schools tend to be less than forthcoming as to how the Directives are implemented in school policy, and some fail to give notice that the Directives control at all.

For a further example of conflicting self-characterizations, we now turn to the permissibility of funding under the federal Constitution. In 2000, the University of Notre Dame received a $500,000 federal grant that funded a program that included training teachers to work in parochial schools. Taxpayers sued the federal government, alleging the grant violated the First Amendment’s prohibition of government establishment of religion. Notre Dame intervened in the case as a defendant to defend its interest in the funds. Inherent to Notre Dame’s argument that the funding did not violate the First Amendment, is the fact that Notre Dame engages in many secular activities. In fact, just by applying for the grant, for which the “[u]se of funds for religion” was explicitly prohibited, Notre Dame represented to the government that despite its religious affiliation, not everything it does is an exercise of religion.

In court papers, Notre Dame detailed how it segregated and tracked the use of the taxpayer funds to ensure they were not used for religious purposes. Among those expenses Notre Dame categorized as “secular” were “director’s and associate director’s salaries and benefits.” Those benefits presumably include medical benefits. Compare that to Notre Dame’s lawsuit challenging the contraceptive coverage mandate, in which Notre Dame claims offering particular health plans is an exercise of its religious belief.  (See page 38 here.) Health plans are “secular” when the University seeks taxpayer money, but an “exercise of religion” when it doesn’t want to adhere to generally applicable law.

In defending its federal funding, Notre Dame cited a number of cases for the proposition that government aid to universities does not necessarily violate the Establishment Clause. In so holding, courts rely on the fact that universities are not intrinsically sectarian places where government funds will be used for indoctrination, distinguishing them from religious primary schools. For example, in Tilton v. Richardson, the Supreme Court explained, “[t]here are generally significant differences between the religious aspects of church-related institutions of higher learning and parochial elementary and secondary schools.” Those differences in secularity and the feasibility of separating religious from non-religious activities, makes direct funding of religiously-affiliated universities constitutional while funding religious primary schools generally is not. Despite its prior reliance on these cases, Notre Dame is now claiming to be a “person” under the Religious Freedom Restoration Act whose every policy or action is apparently an exercise of religion.

If these universities are making conflicting statement about whether or not they are religiously controlled to courts and government agencies, imagine the incomplete information they are giving prospective students and employees. Institutions that believe they are entitled to exemptions to the law or to use religion as a post hoc defense to discrimination claims should have to say so up front.  No institution should be able to claim the contraceptive coverage accommodation or any other without making a statement of their religious affiliation that is available to the public.

Fuller disclosure of religious control is especially necessary in the case of religiously-affiliated hospitals. Any hospital that is providing its employees with a substandard healthcare plan because it adheres to Directives promulgated by the bishops rather than generally accepted health care standards, likely has similarly problematic patient care. That would make it somewhere I do not want to be treated. It would also make it a place many health care professionals wouldn’t want to work and risk having to compromise their own ethical and medical judgments due to the control of a religious authority. However, many hospitals are not making it clear what their religious affiliation means and, where religious hospitals merge with secular ones or change their names, it may be unclear they have a religious affiliation at all.

A friend of mine is doctor who has worked at two different Catholic hospitals, neither of which provided him with a copy of the bishops’ Directives prior to his employment. He first learned how his current hospital’s Catholic control affects patient care in the middle of helping a family navigate end of life care for his comatose patient. When the family decided it was time to let the patient go, they wished to donate his organs. Only then, did their doctor learn the patient would have to be transferred to another hospital to do so. The family did not want to endure transferring the patient, so they had to let him die at the Catholic hospital without the potentially life-saving donation they believed he would have wanted.

At another Catholic hospital, that family might not have been able to withdraw care at all. There is disagreement among hospital ethicists about whether foregoing intravenous food and water is permissible according to decrees by Pope John Paul II and the bishops. Confusion among doctors about the rules at Catholic hospitals is apparently common. I asked my friend how his hospital’s Catholic affiliation affected obstetric care and he had no idea.

Nonstandard medical practices should not be a surprise. A publicly available statement of what an institution’s religious affiliation means won’t help you if you are miscarrying and the ambulance takes you to the nearest hospital, but it would provide vital information to those in a position to choose where to seek treatment or work.

In the context of the contraceptive coverage regulation, organizations claiming the accommodation should also have to identify who has determined that the religion bars providing contraceptive coverage and why. The situation at Boston College is the latest example of why this is necessary.  Responding to administrators’ threats of discipline for students distributing condoms and health information in their dorm rooms, students and alumni have sounded a familiar refrain:

“we chose to go to a Catholic university, not the Catholic Church. We were never warned that students who advocate for basic health-care access would be silenced and undermined at every turn. In every tour and orientation, student guides proclaim that BC is a welcoming campus for people from diverse backgrounds and perspectives.”

At Boston College (as at Notre Dame, Fordham, Georgetown and likely many other universities facing escalating pressure from off campus) vague references to the mission are being used to justify policies students didn’t expect with little explanation as to how permitting access to sexual health services and information violates Catholic teaching, nor discussion of the extent to which university policy is controlled by Catholic doctrine.

Organizations controlled by and affiliated with religious authorities increasingly demand public funding with few conditions. Courts are reluctant to inquire into how religious an organization is or engage in line drawing as to whether an activity is or is not religious exercise. The harder it becomes to restrict taxpayer money for religious use, the more we must rely on avoiding institutions, to the extent that is possible, that will deprive us of legal protections for religious reasons. Given that institutions sometimes find it in their interests to keep things vague in order to say different things to different audiences, the law should require, at the very least, that an institution seeking either public funding or any religious accommodation make an explicit and comprehensive statement about its own religiousness and accept whatever consequences result.

News Health Systems

What Happens When a Catholic-Run Clinic Comes to Your Local Walgreens?

Amy Littlefield

“It causes us great concern when we think about vulnerable populations ... [who] may need to use these clinics for things like getting their contraception prescribed and who would never think that when they went into a Walgreens they would be restricted by Catholic doctrine,” Lorie Chaiten, director of the women’s and reproductive rights project of the ACLU of Illinois, told Rewire.

One of the largest Catholic health systems is set to begin running health clinics inside 27 Walgreens stores in Missouri and Illinois next week. The deal between Walgreens and SSM Health has raised concerns from public interest groups worried that care may be compromised by religious doctrine.

Catholic health systems generally follow directives issued by the U.S. Conference of Catholic Bishops that restrict access to an array of services, including abortion care, contraception, tubal ligations, vasectomies, and fertility treatments.

“We are concerned that the clinics will likewise be required to follow the [directives], thereby severely curtailing access to important reproductive health services, information, and referrals,” MergerWatch, the National Health Law Program, and the American Civil Liberties Unions of Illinois and Missouri wrote in a letter to Walgreens on Wednesday. They also sent a letter to SSM Health.

In a statement emailed to Rewire, Walgreens said its relationship with SSM Health “will not have any impact on any of our current clinic or pharmacy policies and procedures.”

SSM Health emailed a statement saying it “will continue to offer the same services that are currently available at Walgreens Healthcare Clinics today.” If a patient needs services “that are beyond the scope of what is appropriate for a retail clinic setting, they will be referred to a primary care physician or other provider of their choice,” the statement read.

A spokesperson for SSM Health demurred when Rewire asked if that would include referrals for abortion care.

“I’ve got to check this part out, my apologies, this is one that hadn’t occurred to me,” said Jason Merrill, the spokesperson.

Merrill later reiterated SSM Health’s statement that it would continue to offer the same services.

Catholic health systems have in recent years expanded control over U.S. hospitals, with one in six acute-care hospital beds now in a Catholic-owned or -affiliated facility. Patients in such hospitals have been turned away while miscarrying, denied tubal ligations, and refused abortion care despite conditions like brain cancer.

Catholic health systems have also expanded into the broader landscape of outpatient services, raising new questions about how religion could influence other forms of care.

“The whole health system is transforming itself with more and more health care being delivered outside the hospital,” Lois Uttley, director of MergerWatch, told Rewire. “So we are looking carefully to make sure that the religious restrictions that have been such a problem for reproductive health care at Catholic hospitals are not now transferred to these drug store clinics or to urgent care centers or free-standing emergency rooms.”

Walgreens last year announced a similar arrangement with the Catholic health system Providence Health & Services to bring up to 25 retail clinics to Oregon and Washington. After expressing concerns about the deal, the ACLU of Washington said it received assurances from both Walgreens and Providence that services at those clinics would not be affected by religious doctrine.

Meanwhile, the major urgent care provider CityMD recently announced a partnership with CHI Franciscan Health–which is affiliated with Catholic Health Initiatives–to open urgent care centers in Washington state.

“We’re seeing [Catholic health systems] going into the urgent care business and into the primary care business and in accountable care organizations, where they are having an influence on the services that are available to the public and to consumers,” Susan Berke Fogel, director of reproductive health at the National Health Law Program, told Rewire.

GoHealth Urgent Care, which describes itself as “one of the fastest growing urgent care companies in the U.S.,” announced an agreement this year with Dignity Health to bring urgent care centers to California’s Bay Area. Dignity Health used to be called Catholic Healthcare West, but changed its name in 2012.

“This is another pattern that we’ve seen of Catholic health plans and health providers changing their names to things that don’t sound so Catholic,” Lois Uttley said.

 

In the letters sent Wednesday, the National Health Law Program and other groups requested meetings with Walgreens and SSM Health to discuss concerns about the potential influence of religion on the clinics.

“It causes us great concern when we think about vulnerable populations, we think about low-income people… people who… may need to use these clinics for things like getting their contraception prescribed and who would never think that when they went into a Walgreens they would be restricted by Catholic doctrine,” Lorie Chaiten, director of the Reproductive Rights Project of the ACLU of Illinois, told Rewire.

The new clinics in Walgreens will reportedly be called “SSM Health Express Clinics at Walgreens.” According to SSM Health’s website, its initials “[pay] tribute” to the Sisters of St. Mary.

“We are fairly forthcoming with the fact that we are a mission-based health care organization,” Merrill told Rewire. “That’s something we embrace. I don’t think it’s anything we would hide.”

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.

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