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]

Bedrock values?

Project letter to The Canadian Pharmaceutical Journal

Sean Murphy*

Polly Thompson asserts that religious tolerance is “a bedrock value of our democracy, and it goes both ways,” but then claims that “the onus is on the health professional to respect the religious beliefs of the patient, not the other way around,” a most peculiar form of tolerant reciprocity. The balance of the editorial demonstrates a troubling ignorance of the legal requirements to accommodate conscientious objectors[1] and de facto contempt of the “bedrock value” she purports to respect in theory. (The Public Trust and Access to Medication, Canadian Pharmaceutical Journal, October, 2004, Vol. 137, No. 8).

Patients and pharmacists have equal claims to freedom of conscience and expression, but one looks in vain in the editorial for a thoughtful analysis of how to deal fairly with conflicts of conscience in health care. A principled approach to conscientious objection would, among other things, distinguish between life-threatening injuries or conditions, and non-emergent situations. To equate the provision of blood transfusions for accident victims with dispensing contraceptives or post-coital interceptives suggests a disappointing editorial interest in polemics, not principle.

Thompson is mistaken when she claims that some pharmacists raise religious objections to her access to medication. Their concerns are not with her access, but with their own moral culpability should they facilitate harmful conduct or other wrongdoing by someone else.

The fact that a drug is legal does not determine this issue. By way of comparison, mouthwash is a legal product commonly sold in pharmacies. It can also be an intoxicant when consumed as a beverage. A conscientious pharmacist might well refuse to sell mouthwash to an alcoholic known to consume it for that purpose, whether or not the product could be accessed elsewhere.

Similarly, the practice of law is a self-regulated profession, and, like pharmacists, lawyers are expected to serve the interests of their clients. But a client cannot force a lawyer to facilitate what the lawyer considers to be a wrongful act – even if the act is legal.

Ms. Thompson’s fierce determination to adhere to her own moral views is not surprising, but she has failed to demonstrate that her morality is so superior that it should be imposed upon those who disagree with her. Indeed, she did not even attempt such a demonstration before calling for the elimination of “troubling holes” and “wiggle room” that make grudging allowance for freedom of conscience in pharmacy. Her message to those unwilling to go along with her is uncompromising; get out of the profession. Given this totalitarian mindset, Ms. Thompson’s complaint that ‘fundamentalist extremists’ dictate policy in the United States invites the waggish response that in Canada they write editorials for professional journals.

Pharmacy regulatory authorities can, with some imagination and good will, find ways to ensure “timely access to legal medication” without suppressing of freedom of conscience in the profession. The Canadian Pharmaceutical Journal can contribute to this kind of fruitful accommodation. But the profession and the public are not well served by the kind of incoherence, intolerance, polemics and ignorance of human rights jurisprudence displayed in its October editorial.

Sean Murphy, Administrator
Protection of Conscience Project


1. Benson I. “Autonomy”, “Justice” and the Legal Requirement to Accommodate the Conscience and Religious Beliefs of Professionals in Health Care [Internet]. Powell River (BC): Protection of Conscience Project; 2001 Mar. The Canadian Pharmaceutical Journal declined to publish the essay, which was a response to an article by Frank Archer that had appeared in an earlier number of the Journal. See also Murphy S. In Defence of the New Heretics: A Response to Frank Archer [Internet]. Powell River (BC): Protection of Conscience Project; 2000 Jul – also declined by the CPJ.

When rights collide

© Copyright 2004 Calgary Herald
Reproduced with permission

Nigel Hannaford

A few years ago, a customer asked Co-op pharmacist Maria Bizecki to fill a prescription for an abortion drug. For Bizecki, a Roman Catholic and active pro-lifer, this was akin to being invited to become an accessory to murder. She declined.

It was a risky stand against the prevailing view of pharmaceutical professional associations, and employers retailing drugs. Yet, ultimately it led to a small step forward for Albertans’ religious freedom.

The Alberta College of Pharmacists (ACP), for instance, her profession’s ethics watchdog, emphasizes a client’s right to have pharmaceutical needs met. It grants conscience leeway to its members, though this did not save Bizecki from facing complaints about her stand.

More particularly, the conscience clause is little help to pharmacists dealing with unsympathetic employers.

The letter one Pro-Life Ontario pharmacist got from his boss (quoted in the Pro-Life paper, Interim) eloquently expresses the all-business perspective: “You are not employed by the company to make moral or philosophical decisions about whether birth control is appropriate for the customer . . . we are engaged in a retail activity.”

The letter concluded with a threat of termination, noting that if the pharmacist couldn’t separate his beliefs from his job, he should “think long and hard about whether you could continue in your capacity.”

Co-op was comparatively gentle. Bizecki had been straightforward with them about her views, and was known in the community as a pro-life activist. She was suspended with pay.

She doesn’t talk about the complaints which led to her being investigated by the ACP; the details are subject to her duty of confidentiality. Still, when in 2000, a pro-choice website challenged the conscience rights of pharmacists, the prompt arrival of the first complaint was no surprise.

The situation was a pickle of contending rights and obligations.

Obviously, if a prescribed drug is legal, a client has a right to buy it, and a druggist to sell it. But, only the wilfully blind wouldn’t admit honest people can sincerely disagree over abortion. As employees are not mere instruments of an employer’s will, but have a right of conscience, even an obligation, how does one loosen the tangle?

One way is to choose. When human rights commissions do so, religious freedoms sometimes lose. The case of a Catholic school board
compelled to allow a gay student to bring his boyfriend to a prom, is illustrative.

The other way is negotiation. It took nearly three years for Bizecki’s lawyer, Gerry Chipeur, the college and Co-op to work it out, but there was a happy ending. That is, something which worked for everybody, and it serves as a useful template.

The reasonable accommodation of Bizecki’s principles was a written agreement in which she recognized the public’s right to have a prescription filled by a pharmacist, and that she could not and should not obstruct it. But, employers have a duty to reasonably accommodate employee scruples, and Co-op agreed not to demand she fill prescriptions for drugs which effect abortions. Thus, with the college’s blessing, she would always be part of a two-person dispensary.

Chipeur adds this might not be a reasonable accommodation for a one- person pharmacy: “However, in Canada employers have always had a duty to be reasonable, so long as there’s no undue burden. This is the first time that I’m aware, that there has been such an accommodation. If there’s a similar breakdown in Alberta in the future, it would be unwise for any health employer to not accommodate a pro-life position. I’d just say this to pro-lifers: Don’t take a job in an abortion clinic and then say you don’t want to do abortions.”

What distinguishes this case from some of the head-on rights collisions we’ve seen in Canada, is that the parties would accept a solution, not hold out for a victory. Canada aspires to be a tolerant country.

This is what tolerance looks like.

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