HHS and Religious Liberty

National Catholic Reporter
Distinctly Catholic

1 November, 2011

Reprinted by permission of National Catholic Reporter,
115 E Armour Blvd, Kansas City, MO 64111

Michael Sean Winters*

In this case, according to the Post story, career staff, that is non-political appointees, at HHS strongly urged the grant be renewed because the USCCB did a better job than other agencies in caring for the victims of human trafficking, but they were over-ruled by political appointees who wanted to insist that the contracts only be awarded to those organizations that would provide access to contraception and abortion services.

The issue of religious liberty is fast becoming a central concern among the nation’s bishops. The proposed interim rule from the Department of Health and Human Services regarding mandated coverage for contraception and sterilization in insurance plans struck many as a direct assault on religious, especially Catholic, institutions. The Department of Justice’s brief in the Supreme Court case Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC is viewed by the bishops as an even more dangerous attack on religious liberty. Last week, Bishop William Lori, chairman of a new ad hoc committee on the religious liberty, testified on the subject before Congress. (I wrote about Lori’s testimony here.)

This morning, a front page, above-the-fold, article about tensions between the Obama administration and the Catholic Church casts a new spotlight on the issue of religious liberty. The article focuses on the decision of HHS not to renew a contract with the USCCB for the provision of services to survivors of human trafficking.

What is going on? Are the alarm bells warranted? Is the Obama administration hell-bent on constricting the Church’s traditional social mission and/or coercing certain Church organizations and programs to choose between following Church teaching and accessing government funds? Or, is this just another case of the Church adopting a defensive posture towards the culture, giving voice to a populist concern, amplified ad nauseum by the people at Fox News, about “cultural elites” that are seeking to strip America of its religious heritage?

In the case of the denial of HHS funding for the USCCB’s efforts to aid the victims and survivors of human trafficking, a grant that amounted to some $4.5 million, some of the language from the USCCB is a bit over-the-top. If the Obama administration really were adopting an “anybody but Catholics” approach, as my friend Sr. Mary Ann Walsh claimed, she must explain why other grants from HHS’s Office of Refugee Resettlement to the USCCB increased from $27 million in fiscal year 2010 to some $32 million in fiscal 2011. But, social service providers gain and lose contracts all the time. Is there a religious liberty issue at stake here?

There are many aspects to the issue of religious liberty. Today, I should like to focus on precisely what the issue is, and what it isn’t. The issue of religious liberty has two principal aspects: 1) Is someone being coerced to do something against their conscience? And 2) Is someone being discriminated against unfairly on account of their religious beliefs or practices?

HHS has every right to set certain requirements for grants. Nor does the Church have a First Amendment right to a government grant. If HHS wants to require all grant recipients provide access to contraception and abortion services, it can do so, but HHS must then demonstrate why such a requirement is more important than other considerations in awarding grants. And, it must be fairly public about making such an argument: A few political appointees at HHS should not be able to decide these issues behind closed doors. In this case, according to the Post story, career staff, that is non-political appointees, at HHS strongly urged the grant be renewed because the USCCB did a better job than other agencies in caring for the victims of human trafficking, but they were over-ruled by political appointees who wanted to insist that the contracts only be awarded to those organizations that would provide access to contraception and abortion services. Does HHS really want to be in the position of arguing that contraception and abortion is so important that it trumps all other considerations regarding support services for the victims of human trafficking? It is not an argument that I would want to make.

So, where is the religious liberty issue in all this? If HHS intentionally discriminated against the Catholic Church in the awarding of grants, that violates the First Amendment. If, however, HHS set a requirement, and the Church feels it is unable to meet that requirement for its own moral reasons, I do not discern a religious liberty issue: Again, the Church does not have a “right” to a government contract. But, it is incumbent upon HHS officials to make it clear what motivated them and a series of congressional hearings on the matter would certainly help illuminate what is now hidden.

HHS is not the only one having difficulty deciding where and how the issue of religious liberty manifests itself. Last week, Bishop William Lori testified before a House subcommittee on the subject of religious liberty. I wrote about his testimony here. But, in the question period, Bishop Lori got dragged into a discussion of same sex marriage that has nothing to do with religious liberty, in fact, the religious liberty argument probably works against the Church’s stance on same sex marriage. The Church opposes same sex marriage because, we believe, marriage means something specific, one man and one woman for one lifetime, open to the possibility of pro-creation, committed to a mutual love so stunning it warrants comparison to the love between Christ and His Church. Religious liberty issues only come up when, for example, the Church feels it cannot award custody of a child in foster care to gay parents, or when same sex couples expect the Catholic Church to treat them the way the Church treats a married couple in terms of employee benefits and the like. Unwittingly, Bishop Lori got dragged off-message by Cong. Steve King, who seemed intent on demonstrating the sacramental significance of marriage, which is a fine thing, but a thing that has no bearing on our constitutional understanding of liberty.

Here is another example of someone intruding non-germane concerns into the religious liberty pot. My friend Sally Steenland, of the Center for American Progress, wrote this regarding the HHS mandates for health care coverage:

“Those on the other side argue that religious organizations such as Notre Dame that choose to operate in a pluralistic secular democracy must respect the religious liberty and consciences of their employees, many of whom are not Catholic—or religious at all. For virtually all these workers, contraception is not a sin but an essential part of moral responsibility around creating a family and parenting. To deny them access to such a basic health service is to unfairly impose a particular set of theological beliefs on people who believe differently.”

To be clear, the HHS mandate, if it does not expand the conscience exemption, would coerce Notre Dame to do something that violates its conscience, forcing the university to either cover contraception and sterilization in its health care plan or to stop providing health care to its students and employees. Steenland’s concern about the consciences of Notre Dame’s employees is admirable but it is misplaced here: No one has a constitutional right to be employed at Notre Dame, nor a constitutional right to receive free contraceptive coverage in their health care plan. Steenland may want, as a matter of public policy, to provide more contraception to more people, but that has nothing to do with religious liberty.

The founders obviously considered religious liberty an important issue: As colonists, they had long raised their objections to British rule as a defense of their civil and ecclesiastic liberties. The founders therefore gave religious freedom a specific mention in the First Amendment. I do not think the historical record warrants the conclusion that the founders saw religious freedom as “primary” in the way Pope Benedict XVI does. Certainly, they did not share the Pope’s anthropological assumptions, and those politicians, mostly from the right, who insist on blurring the differences in order to paint the American founding as a religious event distort the historical record.

To be clear, one of the founders’ principal objectives was to avoid excessive entanglement between religious institutions and government. It is true that the phrase “wall of separation” does not appear in the Constitution, but it does express accurately the ideological concerns of some of the founders. They had seen what a union of throne and altar looked like, and they rejected it. In our day, and especially in the area of providing social services, our nation has concluded that entanglement is a good idea, that we want the government to provide moneys to religious organizations that help the poor, the indigent, the immigrant, the survivor of sexual slavery. These religious organizations tend to do a better job with fewer resources than their secular counterparts, and none do a better job than the Catholic Church. The Obama administration recognizes this. Otherwise, why would it have increased funding for a range of social services provided by the Catholic Church? From 2009 to 2010, government funding for Catholic Charities USA was increased by some $110 million.

There are some “wall of separation” absolutists who oppose such funding. The ACLU has filed a lawsuit against HHS because of its funding of contracts to the USCCB and the consequent result that those funds do not include abortion and contraceptive services. Of course, the ACLU would be on firmer moral ground if it provided services to the victims of human trafficking or opened its own hospitals or ran its own schools. The Catholic Church is on the frontlines of the fight against poverty and other social ills. We should not be penalized because our moral convictions require that we not include contraception and abortions services in our outreach to the poor. Those same moral convictions are what propel us to care for the poor in the first place. There is a moral poverty in our culture’s approach to “reproductive freedom” that is every bit as abhorrent as the socio-economic poverty visited upon too many refugees, immigrants and citizens in our midst. The government demands too much if it demands that we abandon one half of our moral concern in our effort to fulfill the other half.

Tomorrow: The legal aspects of religious liberty arguments.

Family medicine physician forced out over contraceptives for unmarried patients

(USA: 2008)

  • Freedom2Care.org | Brief examples that demonstrate the often subtle, sometimes flagrant and increasingly pervasive discrimination faced by pro-life, faith-based and conscience-driven individuals in the healthcare professions. Full Text

Dawson’s licence revoked for sexual misconduct

Physician who refused birth control to unmarried had sex with patient

 Sean Murphy*

On 9 May, 2005, the Discipline Committee of the College of Physicians and Surgeons of Ontario revoked Dr. Dawson’s registration as a physician for having engaged in the sexual abuse of a married female patient. He was ordered to appear before a panel to be reprimanded and to pay costs to the College in the amount of $2,500.00. A  summary of the judgement is available on the College website. [Full text]

Tough Pill Bill to Swallow

National Catholic Register
Commentary & Opinion
August 25 – 31, 2002

Reproduced with permission

Michael J.  O’Dea*

Regarding “N.Y. ‘Pill Bill’ Puts Church in Tough Spot” (July 28-Aug. 3):

Passage of New York’s Equity in Prescription Insurance and Contraceptive Coverage (EPICC) bill forces New York’s fully insured health plans to subsidize all FDA-approved contraceptive pills and devices. In addition to violating religious liberty and an individual’s right of conscience, this law undermines parents by expanding government control of American children’s sexual and reproductive health. How dare Ms. (Assemblywoman Deborah) Glick get away with her comments in this article. The bill is not about religious freedom, she says, but about individual choice and health care.

This bill is not about individual choice nor health care. It is about state and federal control of our children and what we finance in health care. This is a totalitarian agenda, proposed by Planned Parenthood and the Alan Guttmacher Institute. How does the Church get out of cooperating with a state law that interferes with parents’ right to shape the conscience of their children? The Catholic Church still does have options   of setting up self insured plans that are regulated by ERISSA, the federal law that frees self-insured health plans from state contraceptive mandates. However, if Sen. Kennedy and Congressman Bonior get their way with S 104 and HR 1111, those options will quickly vanish. President Bush could be forced to use his veto power – or every private and public health insurance plan that has prescription coverage will force employers and individuals, through taxes and insurance premiums, to confidentially fund unhealthy and morally objectionable contraceptive chemicals and devices  for children, without parental consent or knowledge.

In addition to challenging this insidious N.Y. EPICC legislation in the court and teaching the intrinsic evil of contraception, Catholics must unite to establish, administrate and control financing in their own self-insured Catholic health plan. Catholics must also unite with other faith-based organizations and defeat EPICC. If EPICC is not defeated, what will employers and individuals be forced to pay for next – euthanasia, artificial insemination, invitro-fertilization, cloning, and coverage for unmarried and same-sex partners?  America prides itself on assuring parents the opportunity to raise children without government intrusion and interference. A nation with the greatest political freedom is being undermined by a few powerful political interest groups. At this critical time, when the health and welfare of the American family, our nation’s future and our political freedom are all at stake, it is time for allChristians, particularly those in positions of leadership, to take charge of what we pay for in health care and “Give to Caesar what is Caesar’s and to God what is Gods.”

Emergency contraception a flawed choice

London Free Press
March 19, 2002

Reproduced with permission

Sharon  Osvald

Tomorrow, the first day of spring, a coalition of American national, state and local organizations will take Walt Disney’s Bambi’s notion of “being twitter pated” to a new level.

March 20 is the kick-off to their first annual “back up your birth control” campaign. On that day, women all over the U.S. will be asked, regardless of their need, to request emergency contraceptives (EC) from their doctors. Doctors will promise to tell their patients about EC; pharmacists will talk to their customers about it and activists will lobby both state and federal legislatures in favour of more access and awareness of EC.

Similar campaigns to support what many call the morning pill have been taking place for a couple of years with radio ads, billboards picturing a broken condom and other literature. The Web site has an image of a young working woman flexing her bicep with a heart-shaped tattoo saying EC.

Preven and Plan B are the two emergency contraceptives approved in Canada, but according to pharmacists I’ve talked to, many doctors have been prescribing concentrated birth-control hormones within 72 hours of sex since the 1970s. If taken in time, it prevents fertilized eggs from implanting on the uterine wall. Advocates for EC call it “a  safe, effective back-up birth control method that can prevent pregnancy after unprotected intercourse or contraceptive failure.” Opponents, however, call it an “abortifacient,” believing conception begins at fertilization and the idea of contraception after the fact is nothing more than wishful thinking.

I am certain the intentions of the majority involved in this initiative are good. After all, even the most pro-choice person knows the fewer full-fledged abortions that take place, the better for everyone. Consider the horrible state of the 15-year-old Brampton girl recently charged with second-degree murder after hiding her pregnancy and injuring her baby girl in an unassisted home birth. In contrast, EC pills seem such a neat little compromise. More radical feminists embrace EC as a tool to empower women against the evil oppressor, men, who make us pregnant in the first place and get off scot-free.
However, aside from my personal convictions about when life begins, this campaign and others like it give me the willies. This is because, in the words of Canadian organization, The Protection of Conscience Project, they are so “well-organized, well-connected and well-funded” and “may directly impact some conscientious objectors, especially if activists decide to target objectors or objecting facilities in order to get media coverage or to initiate complaints of professional misconduct.” In short, these groups bully those who don’t see the world from their point of view and trample on objectors’ rights and freedoms.

Secondly, it seems to me the message of emergency back-up plans is cheap. I mean, if a group is going to take time, energy and resources to imprint a message into the psyche of young women, is this the best message we have to give them? Why not teach them to respect themselves, to be responsible for their actions (even mistakes) and how to form monogamous, lasting accountable relationships, instead of ones that create an emergency if you become pregnant when pre-intercourse birth control fails? Why don’t we hand out planned parenting post cards that say, “Don’t waste yourself on a one-night stand,” instead of, “You have 72 hours to erase last night.” Rather than simply empowering women to be in charge of their bodies, why not teach men and women what a wonderful thing sex can be in the right context? Maybe even, heaven forbid, encourage  them to wait? Then we might not only have less unwanted pregnancies, but also women who are emotionally healthy and truly empowered.

Disciplinary Hearing of Doctor Who Won’t Prescribe Pill Open to Public

Dr. Dawson Requests Prayers and Letters of Support

Dr. Stephen Dawson, the family doctor who is in danger of losing his medical licence over his refusal to prescribe the birth control pill to unmarried women clarified his position in an interview with LifeSite last night. Dr. Dawson told LifeSite that the initial coverage in the Barrie Examiner suggested he may compromise on the matter. He clarified: “Under no circumstances will I compromise. I would rather lose my licence.”

He said that he would not apologize for refusing to offer the pill to unmarried women but would apologize for the perhaps “overzealous manner in which I presented my case to these women initially.” [Full text]

 

Doctor’s faith under scrutiny

Barrie physician won’t offer the pill, could lose his licence

 Cheryl Canning

Dr. Stephen Dawson faces a discipline committee at the College of Physicians and Surgeons of Ontario in April because he refused to prescribe birth control pills to unmarried women.

A Barrie doctor could lose his licence to practise medicine because of his religious beliefs.

Dr. Stephen Dawson faces a discipline committee at the College of Physicians and Surgeons of Ontario in April because he refused to prescribe birth control pills to unmarried women.

“If a Christian physician must forsake his religious beliefs to maintain his medical licence, we cannot delude ourselves to believe we live in a free country,” said Dawson.

Last summer, four female patients made formal complaints to the college, citing Dawson’s refusal to prescribe birth control to the “unmarried” women as the reason, he said.

Dawson believes that when a doctor prescribes birth control pills to an unmarried woman, he unwittingly promotes sex outside of marriage, because he removes the fear of pregnancy. [Full text]

Project Letter to the BC Medical Journal

British Columbia, Canada
16 February, 2002

Sean Murphy, Administrator
Protection of Conscience Project

The cover of your  January/February 2002 edition highlighting Dr. Roey M. Malleson’s article on ‘emergency contraception’ was unexpected: a brawny, half-naked, Aryan warrior, eyes glinting murderously from under his horned helmet, wielding a copper IUD, crouched to spring and slaughter.

I would like permission to  post the cover on the Project website, and would appreciate it if you would send me seven copies of the issue. The cover is a splendid  illustration of the usual basis for conscientious objection to  potentially abortifacient devices and drugs, and the article provides  an excellent example of moral obfuscation masquerading as science.

Dr. Malleson clearly  believes, as a matter of faith (for it cannot be science), that it is not immoral to destroy an early human embryo by preventing implantation. However, the article fails to explain why this belief should be forced upon those who do not share it. The Journal of the Society of Obstetricians and Gynaecologists, cited to support Dr. Malleson’s threatening accusation of negligence, is not widely acknowledged to be an infallible authority on faith and morals, nor is Dr. Malleson.

Finally, astute readers will recognize that the law is more complex than suggested by the article. Freedom of conscience is recognized as a fundamental freedom that must be accommodated. It is imprudent and unhelpful to publicly incite civil actions against colleagues in order to secure their submission to the moral outlook so aptly expressed by your cover.

Letter to the Telegraph Journal

New Brunswick, Canada
14 February, 2002

J. Edward Troy,
Bishop Emeritus of  Saint John Rothesay

[Comments in the December, 2001, Bulletin of the College of Physicians and Surgeons  came to media attention in February, 2002, generating pressure on conscientious objectors in New Brunswick.  Catholic Bishop J.  Edward Troy responded to the news reports in this letter, reproduced with permission of the author.  – Administrator-]

The headline on the front page, “MDs’ morals restricting birth control access” (Telegraph-Journal, Feb. 9) was eye-catching. Upon reading the piece, I learned the reporter was culling from the Bulletin of the College of Physicians and Surgeons of New Brunswick (CPSNB) in which it was recorded that at its meeting of Nov. 23, 2001, its council discussed the implications of the right of physicians not to participate in a treatment or process to which they morally object.

In other words, the Code of Ethics of the College quite properly permits physicians to practice their profession in accordance with their conscience. The discussion, as recorded in the bulletin, is repeated  almost in its entirety in the Telegraph-Journal. It was particularly noted that some patients are not referred for an abortion or do not receive advice on contraception from their doctors. This is followed by  comments (not contained in the bulletin) from one physician in Saint John who doesn’t have the same moral qualms, and by some remarks from  the administrator of the Morgentaler abortion facility in Fredericton.

There is an underlying indignation present in the article more suitable to an opinion piece than to a news report. The writer goes back to Nov. 23 for this information which is given headline treatment on Feb. 9,  breathlessly zeroing in on the roughly eight per cent of the text in the college bulletin that considers the case of patients whose doctors refuse to counsel abortion or contraception because of their moral  principles.

Nothing about the other important matters the council deliberated upon  and which were reported in the pages of the same bulletin. Nothing about  the patient who died from a heart attack after being refused treatment for heart disease. Nothing about the instances where allegations of  malpractice were lodged against doctors for a variety of reasons that  resulted in loss of life or serious illness. Nothing about the extremely difficult choices physicians are faced with every day and the honest  efforts the vast majority of them make to serve their patients with  integrity and skill, but also with fallibility and occasional failure.

No, the focus, in a somewhat negative and disapproving fashion, on the  good news that physicians are acting conscientiously in their professional lives. Indeed I was impressed and heartened by all that I read in the bulletin precisely because it revealed the conscientious  manner in which the council of the CPSNB monitors and guides its members.

I doubt very much the CPSNB would wish to change its code of ethics so as to require physicians to disregard their consciences, especially today when there are factions promoting euthanasia and  physician-assisted suicide. While the code of ethics of the CPSNB does  not allow the doctor to impose his moral views on the patient, it would be equally objectionable to insist that the patient be authorized to  impose his or her moral outlook on the doctor. One hears of patients demanding a prescription for this or that drug; should the physician be  obliged to comply? There is reference in the newspaper piece to the  “morning after pill” that is not really a contraceptive but rather an abortifacient.

Pro-life doctors do not perform or cause abortions nor do they  co-operate with others in procuring an abortion. They rightly consider that abortion is the taking of a human life at an early stage in its  development.

In today’s social and cultural climate, the opposition to contraception is not easily understood, let alone accepted. This is not surprising  since the whole idea of any binding moral principles in the area of  sexuality is widely rejected. According to the lax standards prevalent in our culture, no sexual behaviour is morally wrong – fornication, promiscuity, adultery, masturbation, homosexuality, bestiality, etc.

With the exception of child sexual abuse, the guiding rationale seems to be a light-hearted “different folks, different strokes!”

If a person adheres to this sexual libertinism, he or she is not likely to be persuaded by any amount of argumentation that artificial methods  of contraception are wrong, nor will he or she be able or willing to  grasp the distinction between them and natural family planning. He or she will not see that the warm embrace of contraception has led logically and historically to the widespread acceptance of abortion.

While the views of the administrator of the Morgentaler facility were  completely predictable, she really demonstrates a lot of nerve in lecturing physicians about ethics. “I think it’s very irresponsible of doctors not to be meeting patients’ needs, regardless of their personal opinion or religious beliefs,” she is quoted as saying.  Now this judgment comes from someone who is managing a business devoted  to the destruction of babies in the womb!

Talk about the moral high ground! Also, please observe the mentality  revealed in this declaration. If the abortionists were in charge, they would require people to act against their conscience. These are the same  folks that are always whining about pro-life people who, they say, wish to impose their morality on them. However, it’s apparently all right for  the pro-abortion people to impose their morality on the rest of us.

She is also reported complaining that “many” women who had  been refused birth control pills by doctors were using other methods such as condoms and became pregnant. Was that a slip of the tongue?  Doesn’t she belong to the school that keeps insisting that condoms  should be made available to teens and others so that they won’t become  pregnant or contract AIDS? What about all that propaganda about  “safe sex?” It appears that she knows, as everyone should,  that condoms do fail with the result that the woman becomes pregnant or  the unaffected partner gets AIDS.

I salute physicians – no doubt the vast majority of practitioners – who refuse to ignore conscience and moral principle in the exercise of their  calling. I honour physicians who do not derive their notions of what is  right and wrong from popular magazines or from the superficial opinions of “celebrities” or from Hollywood script writers or from harangues by those who operate abortuaries.

Doctors have access to a long and solid tradition of medical ethics.  It’s encouraging to see that so many continue to draw on that wisdom in the practice of their profession and aren’t easily swayed by the fog of  moral indifference which covers so much of the world today.

K-Mart pharmacist fired for refusing to dispense potential embryocide

 Cincinnati, Ohio, U.S.A

Karen L. Brauer M.S. R.Ph*

I was fired from my position as a pharmacist with the KMart Corporation for refusal to dispense Micronor, a progestin-only  “minipill”, for the purpose of birth control.

. . . My name is Karen L. Brauer. My “alphabet soup” is M.S. R.Ph., and I am a practicing community pharmacist. Prior to this (my favorite) career, I had enjoyed a brief time in the field of medical research. On December 19, 1996, I was fired from my position as a pharmacist with the KMart Corporation for refusal to dispense Micronor, a progestin-only “minipill”, for the purpose of birth control.

My opinion of this form of birth control was formed 20 years ago, because that is when I became aware of its most prominent mechanism to prevent implantation (as distinguished from a primarily contraceptive mechanism). My instructors in dispensing lab at pharmacy school were made aware of my opinion of this type of birth control, as was the District Manager who hired me to work for KMart. For the seven years that I worked for KMart, I turned away prescriptions for progestin only birth control, more often than not, talking the women out of filling the prescription at all. The Greater Cincinnati Area is a very conservative part of the country, and “minipills” were never very hot sellers here. [Full Text]