Im­pact of birth-con­trol law­suits

Three Catholic sys­tems join law­suit against HHS

Modern Healthcare - - FRONT PAGE - Joe Carl­son

Three Ro­man Catholic health sys­tems joined in the fight against HHS’ final rules man­dat­ing in­sur­ance cov­er­age for em­ployee birth con­trol—a le­gal bat­tle that some ob­servers called pre­ma­ture and oth­ers said was im­per­a­tive.

The three health­care providers were among 43 plain­tiffs in 12 fed­eral law­suits filed in dis­tricts across the coun­try last week that seek to ex­pand the ex­emp­tions un­der HHS’ final rule. Em­ploy­ers not ex­empt from the re­quire­ment would have to of­fer health plans by Aug. 1, 2013, that pro­vide con­tra­cep­tion drugs and ser­vices at no out-of-pocket cost to em­ploy­ees, which Catholic em­ploy­ers ob­ject to on re­li­gious grounds.

The en­ti­ties that sued in­cluded 13 Catholic dio­ce­ses drawn from across the coun­try—a move that ex­perts called ex­tra­or­di­nary.

“I think it’s vir­tu­ally un­prece­dented,” said Robert Kennedy, chair­man of the Depart­ment of Catholic Stud­ies at St. Thomas Univer­sity in St. Paul. “I can’t think of a time when the bish­ops have sued the fed­eral gov­ern­ment on any­thing like this. This is a sign of how dis­tressed they are about what they see as a re­li­gious lib­erty is­sue.”

Most Catholic health­care providers, how­ever, are stand­ing on the side­lines in the le­gal fight. The Catholic Health As­so­ci­a­tion de­clined to com­ment. And skep­tics noted that only 13 of the na­tion’s 195 dio­ce­ses had joined law­suits, sig­nal­ing less-than-univer­sal sup­port for the tac­tic.

In a much-no­ticed in­ter­view with weekly Catholic mag­a­zine Amer­ica, Bishop Stephen Blaire of Stock­ton, Calif., openly protested the decision to go to court. He said it was a pre­ma­ture move with­out a fuller dis­cus­sion among the na­tional com­mu­nity of bish­ops, es­pe­cially in light of con­cerns that Catholics’ ob­jec­tions to the HHS rule were be­ing used as a po­lit­i­cal tool in an elec­tion year.

“I think there are dif­fer­ent groups that are try­ing to co-opt this and make it into a po­lit­i­cal is­sue, and that’s why we need to have a deeper dis­cus­sion as bish­ops,” Blaire was quoted as say­ing, adding that fur­ther dis­cus­sions with the Obama ad­min­is­tra­tion could have been fruit­ful. Blaire de­clined an in­ter­view through a spokes­woman, but con­firmed the quotes in Amer­ica were ac­cu­rate.

Ex­ec­u­tives with St. Do­minic-jack­son (Miss.) Me­mo­rial Hospi­tal joined dio­ce­ses of Jack­son and Biloxi in fil­ing a law­suit in the fed­eral dis­trict court in Gulf­port, Miss., to de­fend what hospi­tal of­fi­cials said was a threat to a cen­tral tenet of Amer­i­can life.

“We didn’t en­ter into it lightly,” said Paul Ar­ring­ton, spokesman for the hospi­tal. “It’s clearly a grass-roots ef­fort on be­half of lots of en­ti­ties. It’s not com­plex, it’s pretty straight­for­ward. It’s about pro­tect­ing re­li­gious lib­er­ties and free­dom.”

Ex­ec­u­tives were not avail­able for in­ter­views at the three health­care or­ga­ni­za­tions that joined the lit­i­ga­tion—523-bed St. Do­minic; 11-hospi­tal Fran­cis­can Al­liance, based in Mishawaka, Ind.; and Catholic Health Ser­vices of Long Is­land (N.Y.), which is run by the Dio­cese of Rockville Cen­tre through a par­ent com­pany.

A state­ment on the Fran­cis­can Al­liance’s web­site said the sys­tem de­cided to “sup­port” the lit­i­ga­tion at the re­quest of the U.S. Con­fer­ence of Catholic Bish­ops. “As a Catholic health­care sys­tem, it is im­per­a­tive that we sup­port this ef­fort of the bish­ops to de­fend the time­less and en­dur­ing truth of re­li­gious free­dom,” the state­ment said.

The Con­fer­ence of Catholic Bish­ops, which is the top Catholic pol­icy-mak­ing group in the U.S., is not of­fi­cially a party to the law­suit, but its pres­i­dent, Car­di­nal Ti­mothy Dolan, ap­plauded the le­gal ac­tion. “We have tried

The U.S. Con­fer­ence of Catholic Bish­ops is not a party to the law­suits against HHS, but its pres­i­dent, Dolan, right, ap­plauded the ac­tion against the final rules.

ne­go­ti­a­tion with the ad­min­is­tra­tion and leg­is­la­tion with the Congress—and we’ll keep at it—but there’s still no fix,” Dolan said in a state­ment. “Time is run­ning out, and our valu­able min­istries and fun­da­men­tal rights hang in the bal­ance, so we have to re­sort to the courts now.”

Dolan’s Arch­dio­cese of New York was among the 13 that joined in the lit­i­ga­tion, which is be­ing han­dled by na­tional law firm Jones Day. A spokesman for the law firm would not com­ment on re­ports that the le­gal ser­vices were be­ing pro­vided for free.

The law­suits do not seek to over­turn HHS’ con­tra­cep­tion-cov­er­age re­quire­ment, but rather to ex­pand the def­i­ni­tion of re­li­gious em­ploy­ers who would be ex­empted. As writ­ten, the ex­emp­tion in the Obama ad­min­is­tra­tion’s rule would ap­ply only to houses of worship and not Catholic hos­pi­tals, uni­ver­si­ties and so­cial ser­vice groups that have much larger work­forces. The ad­min­is­tra­tion failed to quell crit­i­cism in Fe­bru­ary with a mod­i­fi­ca­tion call­ing for the in­surer to cover the costs of con­tra­cep­tion ben­e­fits if an em­ployer raises a re­li­gious ob­jec­tion.

Fram­ing the is­sue in terms of ex­pand­ing an ex­emp­tion might make the crit­ics’ po­si­tion more palat­able to the public, said Na­dia Saw­icki, as­sis­tant pro­fes­sor at the Bea­z­ley In­sti­tute for Health Law and Pol­icy at the Je­suit Loy­ola Univer­sity Chicago School of Law.

“As a gen­eral mat­ter, I think it makes sense from the per­spec­tive of these in­sti­tu­tions to chal­lenge the law as ap­plied to their own sit­u­a­tions seek­ing an ex­emp­tion for them­selves, rather than say­ing it is per se il­le­gal and try­ing to get rid of it,” she said. “My guess is that public opin­ion doesn’t ex­tend all the way to the po­si­tion that con­tra­cep­tion cov­er­age should be re­pealed.”

Leonard Nel­son III, a law pro­fes­sor at the Chris­tian Sam­ford Univer­sity in Birm­ing­ham, Ala., said he thinks the Catholic or­ga­ni­za­tions’ law­suits could find suc­cess in the courts if judges de­cide to fo­cus on the ar­gu­ment that the birth-con­trol pol­icy vi­o­lates the 1993 Re­li­gious Free­dom Restora­tion Act.

That law re­quires that Congress shall not “bur­den a per­son’s ex­er­cise of re­li­gion” un­less law­mak­ers can show that it fur­thers a com­pelling gov­ern­ment in­ter­est and is the least re­stric­tive means of do­ing so. “I think the ar­gu­ment un­der fed­eral RFRA is a strong ar­gu­ment,” Nel­son said.

One sys­tem not in­volved in the lit­i­ga­tion—24-hospi­tal Catholic Health Part­ners, based in Cincin­nati—ac­knowl­edged it was sym­pa­thetic to the goals of the law­suits.

“Catholic Health Part­ners sup­ports any res­o­lu­tion that would ex­clude us from pro­vid­ing Hhs-man­dated in­sur­ance ben­e­fits (ster­il­iza­tions, abor­tion-in­duc­ing drugs and con­tra­cep­tives) that are in con­flict with the re­li­gious be­liefs of the Catholic Church,” a sys­tem spokesman said in a state­ment. “The sim­plest res­o­lu­tion would be for the Obama ad­min­is­tra­tion to ex­pand its pro­posed church ex­clu­sion to ac­com­mo­date all parts of the Catholic min­istry, in­clud­ing health sys­tems.”

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