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Catholic Health Association Response to Women’s Preventive Services Regulations

NEWS RELEASE

Catholic Health Association of the United States

WASHINGTON, D.C. — The following statement is being released by Sr. Carol Keehan, DC, president and chief executive office of the Catholic Health Association of the United States (CHA):

The Catholic Health Association is both pleased and concerned by the U.S. Department of Health & Human Services’ (HHS) recent actions on preventive services for women.

We are delighted that health insurance coverage must include critical screening services without any cost-sharing. What to some may seem like small amounts as co-pays for mammograms, pap smears, etc., has proven to be an effective barrier to care for women who have low incomes.

Our hope is that eliminating this barrier will result in earlier diagnosis at a treatable stage of many diseases such as cancer and diabetes. We applaud this aspect of the recommendations of the Institute of Medicine and their affirmation by the Health Resources and Services Administration.

However, CHA is very concerned about the inadequacy of the conscience protections with respect to the coverage of contraception. As it stands, the language is not broad enough to protect our Catholic health providers. Catholic hospitals are a significant part of this nation’s health care, especially in the care of the most vulnerable. It is critical that we be allowed to serve our nation without compromising our conscience.

HHS is accepting comments on its definition of religious employer and has invited alternative definitions. We will be submitting written comments to HHS and will continue our dialogue with government officials on the essential need for adequate conscience protections.

We appreciate that the Administration does not intend to include abortifacient drugs as covered contraception. Our comments will address our concerns about the mechanism of action of certain FDA-approved contraceptive drugs.

The Catholic Health Association of the United States (CHA), founded in 1915, supports the Catholic health ministry’s commitment to improve the health status of communities and create quality and compassionate health care that works for everyone. The Catholic health ministry is the nation’s largest group of not-for-profit health systems and facilities that, along with their sponsoring organizations, employ more than 750,000 women and men who deliver services combining advanced technology with the Catholic caring tradition.

Conscience Regs Are Totally Inadequate

National Catholic Reporter
Distinctly Catholic
2 August 2011

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

Michael Sean Winters*

. . .to be clear, the issue is not contraception. There is no effort to force our views on contraception on the whole society, only an insistence that society’s views not be foisted on us. Many Catholics disagree with the Church’s teaching on contraception to be sure, but if the government can dictate to us on this point, it can dictate to us on any point. And, then, the First Amendment becomes meaningless.

The Department of Health and Human Services released it new rule regarding mandated coverage, with no co-pays, for women’s health insurance policies. As a part of that rule, HHS included conscience protections for religious institutions, or at least HHS claimed to be doing so. In fact, the new rule is totally inadequate and the best that can be said about it is that it is provisional. HHS explicitly invited comment for sixty days before the rule is finalized.

Here is the key language governing the exemption for religious organizations:

“a religious employer is one that:

(1) has the inculcation of religious values as its purpose;

(2) primarily employs persons who share its religious tenets;

(3) primarily serves persons who share its religious tenets; and

(4) is a non-profit organization under section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Code.”

The rule notes that this language tracks with the language in 28 states that allow such exemptions on religious grounds. It states:

The definition set forth here is intended to reasonably balance the extension of any coverage of contraceptive services under the HRSA Guidelines to as many women as possible, while respecting the unique relationship between certain religious employers and their employees in certain religious positions.

This is presented as an effort to “reasonably balance” interests. But, there is no balance. There is a First Amendment guarantee that Congress make no law restricting the free exercise of religion. Last time I checked, there is no First Amendment right to an insurance policy that covers contraception.

Of course, the First Amendment also prevents religious establishment, and some women’s advocates see the new rule as an unacceptable interference by religion. Judy Waxman, vice president for health and reproductive rights at the National Women’s Law Center, denied the very idea that the Affordable Care Act gave the administration the authority to include a religious exemption. “We don’t think there’s any authority in the law to have a conscience clause,” Waxman said. “It’s unfortunate that the administration is considering this proposal to allow some employers to deny this coverage to women.” Again, the authority to provide a religious exemption may, or may not, be in the ACA but it is certainly in the First Amendment. President Obama, who once taught Constitutional Law, surely knows this.

“Although this new rule gives the agency the discretion to authorize a ‘religious’ exemption, it is so narrow as to exclude most Catholic social service agencies and healthcare providers,” said Cardinal Daniel N. DiNardo, Archbishop of Galveston-Houston and chairman of the USCCB Committee on Pro-Life Activities in a press release from the USCCB.

The problem is with the conjunction “and.” If that conjunction were switched to “or” the new rule would be fine. The four items listed as defining a “religious employer” include “primarily employs person who share its religious tenets.” But, Catholic schools and hospitals employ lots of non-Catholics. The language also requires a religious employer be one that “primarily serves persons who share its religious tenets” but, again, Catholic hospitals and schools take care of all people. Under this rule, we would have to kick out poor Protestant kids from our schools, and refuse to treat Jews in our hospitals. Is that what the administration intends? As Sister Mary Ann Walsh said in a blog post at the USCCB media blog, “HHS’s reg conveniently ignores the underlying principle of Catholic charitable actions: we help people because we are Catholic, not because our clients are. There’s no need to show your baptismal certificate in the hospital emergency room, the parish food pantry, or the diocesan drug rehab program. Or any place else the church offers help, either.”

Sister Carol Keehan, head of the Catholic Health Association, acknowledged that parts of the new rule are laudable. “There are many aspects of this new rule that are vital in protecting life,” Keehan told me yesterday. “Eliminating deductibles and co-pays for screening services is wonderful for protecting the health of all women but especially those who are poor.” But, Keehan also noted that the conscience exemptions need to be air-tight. “We have a comment period in which to study and recommend any changes necessary to assure the conscience protection language is adequate,” Keehan said. “Adequate conscience protection will be essential and we will study what has been released, dialogue and submit comments to assure we have adequate conscience protection.” She also praised the administration for removing abortifacients from the list of mandated coverage, although there is some debate about the effects of one of the FDA-approved drugs. The administration may not listen to me. They may not listen to the USCCB. But, they surely should listen to Sr. Carol without whom there would be no Affordable Care Act in the first place.

The White House should be aware that this is a really, really big issue for us Catholics. And, to be clear, the issue is not contraception. There is no effort to force our views on contraception on the whole society, only an insistence that society’s views not be foisted on us. Many Catholics disagree with the Church’s teaching on contraception to be sure, but if the government can dictate to us on this point, it can dictate to us on any point. And, then, the First Amendment becomes meaningless.

This is also a test case for the White House Faith-Based Office which serves as a liaison to the religious community. They have much improved their outreach to Catholics this year, as I noted in an article last month. But, there remains an outstanding question: How much juice do they have within the administration? The Faith-Based Office knows how important this is to Catholics. Can they persuade others within the White House and HHS to act on that knowledge? To be clear. Keeping the rule as is would give me great pause in casting my ballot for Barack Obama next year, not because he failed to do right by my Church, but because anyone who fails to grasp the constitutional issue here probably should not be entrusted with the post of Chief Magistrate under that same Constitution.

Sixty days is not a long time. But, it is long enough for those who consider ourselves liberals to call on the administration to be true to the best in the liberal tradition, the idea that consciences should not be violated by the government. And, it is long enough for those of us who are Catholics to voice our concern that we do not want to restrict our hospitals and our schools to ourselves, but wish to continue to offer them as a service to the nation and all its citizens. Let’s hope the administration will listen.

USCCB: HHS Mandate for Contraceptive and Abortifacient Drugs Violates Conscience Rights

NEWS RELEASE

United States Conference of Catholic Bishops

WASHINGTON—The U.S. Conference of Catholic Bishops (USCCB) sharply criticized a new HHS “preventive services” mandate requiring private health plans to cover female surgical sterilization and all drugs and devices approved by the FDA as contraceptives, including drugs which can attack a developing unborn child before and after implantation in the mother’s womb.

“For example, under the new rule our institutions would be free to act in accord with Catholic teaching on life and procreation only if they were to stop hiring and serving non-Catholics,” Cardinal DiNardo continued.“Could the federal government possibly intend to pressure Catholic institutions to cease providing health care, education and charitable services to the general public?Health care reform should expand access to basic health care for all, not undermine that goal.”

“The Administration’s failure to create a meaningful conscience exemption to the preventive services mandate underscores the need for Congress to approve the Respect for Rights of Conscience Act,” the Cardinal said.That bill (H.R. 1179), introduced by Reps. Jeff Fortenberry (R-NE) and Dan Boren (D-OK), would prevent mandates under the new health reform law from undermining rights of conscience.

Cardinal DiNardo added: “Catholics are not alone in conscientiously objecting to this mandate.The drugs that Americans would be forced to subsidize under the new rule include Ella, which was approved by the FDA as an ‘emergency contraceptive’ but can act like the abortion drug RU-486. It can abort an established pregnancy weeks after conception. The pro-life majority of Americans – Catholics and others – would be outraged to learn that their premiums must be used for this purpose.”

“HHS says the intent of its ‘preventive services’ mandate is to help ‘stop health problems before they start,’ said Cardinal DiNardo. “But pregnancy is not a disease, and children are not a ‘health problem’ – they are the next generation of Americans.”

“It’s now more vital than ever that Congress pass the Respect for Rights of Conscience Act to close the gaps in conscience protection in the new health care reform act, so employers and employees alike will have the freedom to choose health plans in accordance with their deeply held moral and religious beliefs.”

In a July 22 letter supporting the bill, Cardinal DiNardo wrote: “Those who sponsor, purchase and issue health plans should not be forced to violate their deeply held moral and religious convictions in order to take part in the health care system or provide for the needs of their families or their employees.To force such an unacceptable choice would be as much a threat to universal access to health care as it is to freedom of conscience.”

Cardinal DiNardo also addressed the Institute of Medicine’s recommendations on preventive services for women in a July 19 statement.

Respecting, protecting differences of conscience strengthens health care

National Catholic Reporter
28 July, 2011
Reprinted by permission of National Catholic Reporter,
115 E Armour Blvd, Kansas City, MO 64111

Stephen Schneck*

The issue facing Sebelius is not contraception. The issue is conscience protection. The right of an American citizen to receive birth control or to obtain Plan B does not trump the right of a doctor to decline to participate in procuring an abortion. Nor does it trump the right of a citizen to decline to purchase a policy that pays for procedures they find morally repugnant. You do not have to share that moral repugnance to share the concern that violating the conscience of others runs against the entire spirit — and in the case of Catholic church ministries, against the very letter — of the First Amendment.

In the spring of 2009, President Obama nominated Kansas Gov. Kathleen Sebelius to lead the Department of Health and Human Services. Some conservative Catholics objected to the nomination because of Sebelius’ pro-choice stance on abortion, but many of us defended her, noting Sebelius’ successful tenure as governor of Kansas, and arguing that her position on abortion, whether we agreed with it or not, did not disqualify her from public office.

Later that same spring, controversy erupted within the Catholic church when the University of Notre Dame in Indiana announced it was awarding an honorary degree to Obama. A former U.S. ambassador to the Vatican, Professor Mary Ann Glendon, declined to receive Notre Dame’s Laetare Medal, citing the controversy. In her stead, Judge John Noonan, a Reagan appointee, delivered the Laetare address, in which he commented on the controversy and Glendon’s absence, saying, “One friend is not here today, whose absence I regret. By a lonely, courageous and conscientious choice she declined the honor she deserved. I respect her decision. At the same time, I am here to confirm that all consciences are not the same, that we can recognize great goodness in our nation’s president without defending all of his multitudinous decisions, and that we can rejoice on this wholly happy occasion.”

Today, that nomination and that speech are set on a potential collision course. On Aug. 1, Secretary Sebelius is set to release a new rule that will mandate certain medical procedures that must be covered by new insurance policies offered under the health care reform law. Existing policies will be “grandfathered” but if they undergo substantial changes, they too will have to abide by the new mandates.

Last week, the Institute of Medicine released its recommendations for procedures that should be mandated. These recommendations go a long way toward righting the disparities in coverage for women that have been long lamented. Some of the recommended procedures are both noncontroversial and will improve women’s health, such as a test for the HPV virus that is linked to cervical cancer. Other recommendations, however, are controversial, especially those that relate to sterilization and abortifacients.

For Catholics, abortion is not health care. We Catholics know something about the practice of health care because of the many hospitals we run throughout the country. We know that abortion is not like the other procedures you see going on in any hospital, that it is not designed to save a life but to extinguish one. Our commitment to human dignity, a commitment that leads us to defend the rights of immigrants and the value of social programs that help the poor and the vulnerable, also requires that we seek to defend the unborn.

The Catholic church has also long opposed artifical means of birth control. This is a stance with which many of our fellow Americans, and many fellow Catholics, disagree. The church has not tried to force others to adopt our position on birth control through legal means, but it has asked that it not be coerced into providing birth control at its hospitals or through insurance policies for its employees.

The issue facing Sebelius is not contraception. The issue is conscience protection. The right of an American citizen to receive birth control or to obtain Plan B does not trump the right of a doctor to decline to participate in procuring an abortion. Nor does it trump the right of a citizen to decline to purchase a policy that pays for procedures they find morally repugnant. You do not have to share that moral repugnance to share the concern that violating the conscience of others runs against the entire spirit — and in the case of Catholic church ministries, against the very letter — of the First Amendment.

Whatever procedures are mandated by the new rules, those that are morally controversial should include strong exceptions for religious organizations and for citizens with moral objections to those procedures. Respecting and protecting differences of conscience only strengthens American health care. Such respect, moreover, broadens support for the administration’s vision and leadership

“I am here to confirm that all consciences are not the same,” Noonan said. There is nothing liberal about adopting a rule that ignores the fact that all consciences are not the same. Those of us who supported Sebelius’ nomination argued forcefully that she should not be penalized because her conscience reached different conclusions on contentious issues from those reached by the leaders of the Catholic church. But it would be a tragic irony if, in adopting the new rules, Sebelius declined to afford to Catholic church organizations the same conscience rights we invoked when defending her nomination. Those of us who joined “Catholics for Sebelius” did not do so to see our conscience rights eviscerated.

Stephen Schneck

Director of the Institute for Policy Research & Catholic Studies, Catholic University of America
Fomer Department of Politics at The Catholic University of America
nine years and as Associate Professor in that department for fourteen years.
[Profile]

Spain violates conscientious freedom of medical practitioners

Public hearing at the Council of Europe

News Release

European Center for Law and Justice

(Strasbourg, France) – On June 22, 2011, the European Centre for Law and Justice (ECLJ) organized a public hearing at the Council of Europe, entitled “Spain: Violations of Medical Practitioner’s Freedom of Conscience”. It was conducted with the Spanish Defense Association of Conscientious Objection (ANDOC) and with the support of the European’s People’s Party.

During this hearing, the ANDOC and ECLJ have launched a comprehensive report detailing, with individual examples, the structural and systemic violations of freedom of conscience for healthcare professionals in Spain, and in particular their right to conscientious objection. The right to conscientious objection is founded on the principle that no one shall be forced to threaten someone’s life. Any attack on human life, when permitted by law, can be only performed voluntarily.

Based on this report, a number of parliamentarians from various national and political parties lead by Luca Volontè and Blanca Fernandez, have addressed a “Written question to the Committee of Ministers” urging this Committee, composed of the Representatives of the 47 Council of Europe Member States, to take action in order to ensure respect for doctors, healthcare and administrative personnel, as well as hospitals and institutions’ right to conscientious objection in compliance with European and international regulation. In the following months, the Committee of Ministers will have to agree on a common written response to the Parliamentary Assembly addressing this specific problem.

In Spain, health professionals suffer structural and systemic violations of their rights. Doctors, nurses, and other medical staff that object to performing or assisting with abortion procedures are coerced and suffer career-crippling sanctions or are legally prosecuted for attempting to exercise this fundamental right, which is recognized by both European and international law.

In particular, they are prevented from exercising their freedom of conscience through the following practices:

Submission of a fundamental right to administrative authorization: In order to exercise their fundamental right, a conscientious objector must request an authorization from the administration in advance and in writing.
Creation of a registry of conscientious objectors: The above requests are registered in a directory that ranks medical professionals according to their conscience.
Creation of a registry of conscientious objectors: The above requests are registered in a directory that ranks medical professionals according to their conscience.
Systematic discrimination against conscientious objectors

The presence in the directory has negative consequences for a medical professional. Their career advancement is dependent upon the number of abortions performed or prescribed through the “Accreditation Program of Professional Skills.” In Andalusia, recruitment in the health care system is subject to the condition of not being an objector.

No recognition of the right to conscientious objection of health care institutions that according to their ideology refuse to practice abortions.

Within this structure, there are also other violations such as:

Refusal to register a medical practitioner as an objector;
Deprivation of the right to object for the staff responsible for pre-natal diagnosis, nursing and other administrative personnel;
In order to prevent conscientious objections, the type of operation or information about a negative opinion from the clinical committee is not communicated to the medical professionals, especially to the anesthesiologists and clinical nurses.

During the hearing, presided by the Spanish parliamentarian and medical doctor, Dr Blanca Fernandez (PPE), has also intervened Dr. Esteban Rodriquez Martin, gynecologist, Prof. José Antonio Diez Fernandez Secretary of the ANDOC, and Dr. Grégor Puppinck, Director of the ECLJ.

Dr. Esteban Rodriguez Martin gave his testimony as a gynecologist and victim of the Spanish regulation on abortion and prenatal diagnostic procedures. He explained that he is now before national courts for refusing to take part in the procedure leading to eugenic abortions.

Dr. Esteban Rodriguez Martin underlined that professionals must request advance approval from Spanish administrative authorities to be listed as a “conscientious objector.” Only health care professionals placed on this list of “objectors” are exempt from performing or assisting with abortions, and often, this requirement is not communicated. As a result, if a woman solicits abortion services, health care professionals who object to providing assistance, but are not pre-registered as an “objector,” are legally obligated to either perform the abortion or give a referral-even if doing so would violate their conscience.

José Antonio Diez Fernandez, Professor of Law and Coordinator of ANDOC, presented the national legal framework leading to this structural violation of medical professional’s rights. He noted, inter alia, that those who register as conscientious objectors suffer further negative consequences and are unjustly singled out for voicing their objection. Often career advancement and health care ratings depend on the number of abortion referrals or procedures completed, he noted. Opting to register as an objector has career-stifling effects, because assessment of an objector’s professional skills becomes linked to ideological beliefs and not to the practitioner’s true merit or ability. He also highlighted how administrative authorities will often refuse a practitioner’s attempt to register as an objector. Though the process is supposedly declarative in nature, in practice, health care professionals may be refused to register as objectors for arbitrary criteria.

Dr. Gregor Puppinck, Director of the ECLJ, analyzed the situation in regard to the legal obligations of Spain under European and International law.

He recalled in particular the resolution 1763/2010 “On the Right to conscientious objection in the field of health” adopted in October 2010 by the Council of Europe Parliamentary Assembly holding that:

“No person, hospital or institution shall be coerced, held liable or discriminated against in any manner because of a refusal to perform, accommodate, assist or submit to an abortion, the performance of a human miscarriage, or euthanasia or any act which could cause the death of a human foetus or embryo, for any reason.”

He also commented on the case law of the European Court of Human Rights (ECHR) related to Conscientious objection underlining, in particular, the fact that in numerous decisions since the 1989 Rommelfanger v. Germany ruling (no. 12242/89), the Court has recognized the right of institutions based on a specific ethos, such as religious hospitals, to exercise – on an institutional level – their right of conscientious objection to abortion and other related practices.

Grégor Puppinck also commented on the ECHR’s recent ruling in the case R.R. v. Poland (no. 27617/04) of May 26, 2011. In this case, the Court asserted that if a State decides to legalize abortion, it is then “obliged to organise the health services system in such a way as to ensure that an effective exercise of the freedom of conscience of health professionals in the professional context does not prevent patients from obtaining access to services to which they are entitled under the applicable legislation.” Two aspects of this ruling are of particular interest: first, it expresses the right to an “effective exercise of the freedom of conscience of health professionals in the professional context”, and second, it does not say that the access to abortion should be ensured at the expense of the fundamental rights of health professionals, but it say, however, that the State has to respect both.

Dr Puppinck concluded that in this regard, it is clear that the Spanish regulation does not respect both the individual and institutional right not to take part in an abortion process.

The ECLJ thoroughly supports ANDOC’s efforts to draw attention to this important issue. The right to conscientious objection must be respected. Rather than punishing health care professionals for exercising this right, Spanish authorities must comply with European and international standards to protect this right from the structural and systematic violations that conscientious objectors in Spain are experiencing today.

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