Commentary Contraception

At Any Cost: How Catholic Bishops Pushed for a Shutdown—and Even a Default—Over Birth Control

Adele M. Stan

The U.S. Catholic bishops want to be known as the champions of the poor and struggling. But they're happy to block services to the needy to further their anti-contraception agenda.

On the matter of the government shutdown that took effect October 1, it seems the United States Conference of Catholic Bishops (USCCB) would have it both ways: for and against.

The bishops want to be on the record as champions of health care for the masses, food for the hungry, and shelter for the homeless—things the government, when operational, helps to provide. But they’re happy to block access to such services for those in need of them unless Congress agrees to block women of all faiths or none, on the whim of an employer, from receiving prescription birth control as part of the preventive care benefit in the Affordable Care Act (ACA).

If that doesn’t work, they wouldn’t mind seeing the global economy brought to its knees for the sake of making the most effective forms of contraception more difficult for women to obtain.

Here might be a fitting place to note that women are barred from leadership in the Roman Catholic Church, an act of discrimination that other Christian denominations long ago abandoned. No cardinal was ever made to interrupt his education for an unplanned pregnancy; no bishop ever endured the pain, blood, and terror of a life-threatening labor. But I digress.

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The Bishops and the Tea Party

Late last month, as a legislative impasse incited by Tea Party-allied Sen. Ted Cruz (R-TX), between the U.S. Senate and House of Representatives brought the government within just days of a shutdown, the bishops weighed in. The House, effectively controlled by the GOP’s Tea Party faction, had already gone one round with the Senate, demanding that a routine continuing resolution (CR)—a means of funding the government in the absence of a budget—include a measure that would revoke funding for implementation of the ACA, a measure the Democratic-controlled Senate predictably rejected.

Although both the House and Senate have passed budgets for the operation of the federal government, the House leadership has refused to name members to a conference committee, which is necessary to reconcile the two budget bills. Hence the need for a CR.

In a letter dated September 26, Archbishop Seán Cardinal O’Malley of Boston and Archbishop William E. Lori of Baltimore prevailed upon members of Congress to attach to the next version of the CR measures that would allow private employers, as well as large church-affiliated institutions such as hospitals and universities, to be exempted from a part of the Affordable Care Act that requires that all insurance plans cover prescription contraception without a co-pay. (Houses of worship are exempt from this regulation, but church-affiliated institutions that serve a secular purpose are not.)

The letter was sent under the aegis of the USCCB (also known as the bishops’ lobby), and signed by O’Malley and Lori in their capacities as respective chairmen of the lobby’s Committee on Pro-Life Activities and Ad Hoc Committee on Religious Liberty.

Legislation titled the Health Care Conscience Rights Act (H.R. 940/S. 1204), crafted to the bishops’ specifications, was introduced in both chambers of Congress in March, only to languish in committee. (A similar bill, H.R. 1179, introduced in March 2011, died in committee.) And even earlier efforts to include such a ban on contraceptive coverage in the Affordable Care Act also failed.

“As Congress considers a Continuing Resolution and a debt ceiling bill in the days to come, we reaffirm the vital importance of incorporating the policy of this bill into such “must-pass” legislation,” wrote Lori and O’Malley in their September letter. (Emphasis theirs.)

When it comes to Congress, the lobbyists of the USCCB know their stuff—meaning they knew that such a maneuver would likely bring about a government shutdown. If poor babies went hungry because the Supplemental Nutrition Program for Women, Infants, and Children (WIC) closed down, so be it. If poor children were locked out of their Head Start classrooms, that was apparently deemed a small price to pay to make a stand against allowing people to plan their families.

Around the same time as the bishops wrote their missive, a group of 72 House members, led by Rep. Joe Pitts (R-PA), signed a letter demanding the same of House Speaker John Boehner. If Pitts’s name sounds familiar, you may recall it was he who, with former Rep. Bart Stupak (D-OH), tried to derail the Affordable Care Act’s passage through Congress as they danced to the bishops’ tune in opposition to provisions for reproductive health care, most notably, insurance coverage for abortion.

As the Affordable Care Act took shape in March 2010, the administration reached agreement with Stupak and his allies with the president’s promise to issue an executive order particular to the ACA that reiterates the terms of an already existing law, known as the Hyde Amendment, that forbids the use of federal funds for abortion. (Because the government planned to grant subsidies to lower-income people who sought insurance through government exchanges, the anti-choice forces contended that any policies that covered abortion—even if women chose to pay extra for such coverage out of their own pockets—amounted to a violation of Hyde.) But states were granted the right to opt out of offering abortion coverage on their ACA exchanges, and so far, 23 have placed severe restrictions on abortion coverage, while two have banned any kind of abortion coverage. So insurance coverage for abortion—once a fairly standard insurance provision—is becoming more rare.

The agreement irked both pro-choice and anti-choice activists, though for different reasons. Still, anti-choice forces contend, falsely, to this day that federal dollars are being spent on abortion coverage, as does the legislation referenced in the bishops’ letter. The bishops and their agents in Congress are also aware that few Americans agree with their opposition to birth control, so they also seek to paint the forms of prescription contraception available through the Affordable Care Act’s preventive care provisions as abortifacients, even though science shows otherwise.

A Long-Planned Offensive

As the Department of Health and Human Services (HHS) began hammering out the regulations for implementing the Affordable Care Act in 2011, the USCCB undertook a counter-initiative in their newly-formed Ad Hoc Committee for Religious Liberty, under the leadership of Archbishop Lori. Feeding off the language and flavor of the Tea Party movement that was organized in opposition to health-care reform as the legislation made its way through Congress, Lori’s committee went on to launch a campaign titled Fortnight for Freedom, beginning on the Feast of St. Thomas More (a Catholic martyr) and ending on Independence day—in the heat of the presidential campaign.

No longer was the emphasis on the alleged moral evil of contraception; it was now on an ostensible threat the bishops claimed was being made to the religious liberty of Catholics by the Obama administration. No matter the campaign was a dud among rank-and-file Catholics; it injected the bishops’ anti-Obama message into the 2012 election. Republican presidential nominee Mitt Romney even made an ad featuring images of the late Pope John Paul II that accused Obama of “waging war on religion.”

In their rhetoric, the bishops turned the meaning of the First Amendment’s religious liberty protection on its head, essentially claiming a right for Catholic employers—even private individuals who own wholly secular businesses—to impose their religious beliefs on their employees by depriving them of any health-care coverage that runs counter to the Catholic church’s misogynistic teachings.

More than 70 lawsuits, launched by religious institutions and private businesses, have been filed challenging the contraception mandate under much the same logic as that employed by the bishops. Among those that have gotten the most attention is the suit launched by Hobby Lobby, a chain of crafts supply shops whose evangelical Protestant owners are challenging the mandate not because they oppose contraception per se, but because they claim the methods covered under the Affordable Care Act, such as the intrauterine device (IUD) and emergency contraception, are abortifacients. (They are not.)

In 2012 and early this year, the Obama administration made an accommodation in the regulations for Catholic-affiliated institutions, and similar institutions affiliated with other religions, that mandates insurance companies to pay for the benefit, which is not subject to a deductible or a patient co-payment, rather than the employer offering the plan. When the regulations were finalized earlier this year, the bishops were livid.

At a forum at the Archdiocese of Philadelphia in June, Sarah Posner reported for The American Prospect that Rep. Joe Pitts touted the Health Care Conscience Right Act, saying, according to Posner, “that [House] Majority Leader Eric Cantor (R-VA) was receptive to a plan to attach the bill to a ‘must-pass’ piece of legislation like a continuing resolution for appropriations or raising the debt ceiling limit.” Joining Pitts in addressing the forum, titled “Fight to Preserve Religious Liberty,” were, according to Posner, Rep. Diane Black (R-TN), the bill’s sponsor in the House, and Rep. Chris Smith (R-NJ), whose entire congressional career revolves around his opposition to reproductive rights.

On Saturday, September 28, the Republican-controlled House attached to a revised continuing resolution an amendment that would have delayed by a year the implementation of the contraception mandate—as well as a number of other preventative care benefits for women, such as screenings for human papillomavirus (HPV), counseling for domestic violence victims, and breastfeeding supplies. Perhaps it wasn’t everything the bishops were looking for, but apparently enough to make their point.

Two days later, members of Congress received another letter from the bishops’ lobby, this one signed by Bishop Stephen E. Blaire of Stockton, California; Archbishop José H. Gomez of Los Angeles, and Bishop Richard E. Pates of Des Moines. The prelates stated their concern for the record high rates of poverty in the U.S., the one in five children who are poor, and the 49 million Americans who experienced food insecurity over the last year.

They called on Congress to pass a just budget and an immigration bill. They expressed concern for the future of health care. Then they added: “As Cardinal O’Malley and Archbishop Lori explain in their September 26 letter, access to health care may also be compromised by recent threats to conscience rights in health care.”

It was a threat repeated, its essence this: Drop the contraception benefit mandate, and nobody gets hurt. But if you don’t, don’t blame us for what happens next.

As expected, Senate Majority Leader Harry Reid, seeing as how the anti-contraception measure had nothing to do with funding current government operations, stripped out the amendment, sent the bill back to the House, and, with the deadline having passed for the enactment of a continuing resolution by both chambers, the government shut down.

As it looks now, the government will reopen if and when the House passes a continuing resolution that does no more than what a continuing resolution is meant to do: keep government operations running. For their part, the bishops will likely be back with more demands when, in less than two weeks, it’s time to raise the debt ceiling, with the fate of the global economy hanging in the balance.

Correction: A version of this article misstated the Affordable Care Act’s limitation on abortion coverage as having been enacted through an amendment; it was actually Executive Order 13535 from President Barack Obama that reiterated the longstanding proscription on use of federal funds for abortion. We regret the error.

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.”