There’s much more at stake in the discussion about conscience clauses than who gets the bill for the pill.

By Ann Neumann

On January 20th Health and Human Services Secretary Kathleen Sebelius announced that contraception would be covered free-of-charge in the Patient Protection and Affordable Care Act (PPACA), the Obama administration’s stifled, delayed-release attempt at reforming health care.  The announcement included an exemption “for churches and houses of worship, but not for other religious institutions such as hospitals, universities and charities.”  Women’s rights groups cheered the decision, having feared the worst after the record of “compromise” this administration has established.

The United States Conference of Catholic Bishops (USCCB) did not cheer; they immediately orchestrated a campaign that included letters read at mass and heavy lobbying of conservative lawmakers and activists, peculiarly claiming that the decision was an affront to religious freedom.  It was yet another sparkling demonstration of the influence bishops have over health care legislation. The Pope himself took the opportunity of a visit with U.S. bishops and military leaders on January 19th to lament the erosion of religious freedom, saying:

When a culture attempts to suppress the dimension of ultimate mystery, and to close the doors to transcendent truth, it inevitably becomes impoverished and falls prey… to reductionist and totalitarian readings of the human person and the nature of society.

Prohibit families from deciding when to have children, he threatened, or risk the specter of totalitarianism!  Or rather, Comply with Catholic teaching and be free!

On Tuesday the Obama Administration, via an appearance on MSNBC by David Axelrod, fed the controversy by hedging on their decision, signaling that perhaps the exemption could be adjusted to placate the Pope, the bishops and like-minded employers.

To be clear, the PPACA exemption affects religious employers who provide health insurance, and essentially allows a boss the right to decide how a woman gets her contraception, if at all, and how much she will pay for it.  Currently, 28 states already require coverage by employer-provided health insurance plans; either the church didn’t care about these “violations” or didn’t comply with the laws.  If the administration caves to Vatican and other pressures, they will allow the continued privileging of employers rights over those of employees, a clear affront to medical rights and privacy outside the exemption.

Women’s groups who have thrown their hands in the air this week have just cause to do so; we’re–and this is an indication of how successful and powerful anti-choice groups have been–actually talking about contraception.  No longer is abortion the line of conflict between women’s rights groups and conservatives.  In essence, the USCCB and their allies have been so effective at thwarting access to abortion that, in this election year, with health care consuming more public attention (and resources), conservatives are now emboldened to address further restriction of other medical rights.

It’s that bad.

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And yet the Catholic Church knows that the issue of conscience clauses is about much more than the 750,000 hospital employees who musn’t get their hands on free contraception.  At stake is the autonomy of the millions of patients who are treated at Catholic institutions each year.  How many?  According to the USCCB, there are currently 629 Catholic hospitals serving 20% of all patients in the country (about 50 of those hospitals are sole-providers, meaning there’s no other option for miles).  That’s more than 35 million admissions every year, a total that still doesn’t include patients treated in emergency rooms, elder homes, or covered by HMO networks.

These conscience clauses, initiated with the Church Amendment, passed in 1973 only months after Roe v. Wade, have overlapped and evolved to not only protect the individual conscience of health care providers but, with the passage of the Weldon Amendment in 2005, that of “health care entities.”  Much as Citizens United designated corporations as people, so have these clauses granted institutions conscience rights that supersede the rights of employees and patients.  Not only are services that don’t comply with the Ethical and Religious Directives (ERDs)–written and approved by the USCCB–denied at Catholic institutions, but patients aren’t informed of them as medical options, nor are they referred to other institutions where they might receive them.  Informed consent and referrals are considered violation of Catholic teaching.

Of course, the level to which institutions and providers comply with the Ethical and Religious Directives varies greatly.  What the church demands, as statistics regarding Catholic contraception usage show, followers and employees have a long tradition of resisting.  What often determines the compliance of facilities and employees with Catholic guidelines is the amount of interest the local bishop has in the affairs of institutions in his diocese.  In the past decade, we’ve witnessed the appointment of increasingly conservative bishops and the pressure of presiding bishops to pay closer attention to hospitals, in part by the conservative turn of the church leadership and in part by the pressure on health care delivery from choice movements.

If abortion and contraception were the only medical service Catholic leadership is opposed to, that would be bad enough, but the entire list includes such common medical services as sterilization, emergency contraception, fertility treatments for same-sex couples, counseling for STD or AIDS prevention, and, as I’ve found in my own research on end of life issues, removal of patients from feeding tubes (think Terri Schiavo) or the legalization of Death with Dignity.*

Now imagine you’re a doctor who doesn’t agree with the Church’s rules against providing emergency contraception to rape victims, as enforced by an attentive local bishop.  Do you dissent by giving a woman a pill that will prevent her from getting pregnant — and risk your job?  How do you decide where standard medical ethics and Catholic theology meet?  What is the responsibility of a denominational health care organization that serves a predominantly pluralistic society?  Think hard about these profound questions and you’ll understand the position the Catholic Health Association is in.

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No one’s better at running hospitals than the Catholic Church; after all, they invented them.  For centuries the Catholic church has been caring for the ill as a noble part of the church’s mission.  As the second largest provider of health care in the U.S. (after Veterans’ Affairs) they have an enormous stake in health care provision, regulation and reform.  This role, as an exemplary and primary health care provider, is not lost on the public.  Catholic hospitals are often seen as superior to others; a public perception that is loudly and clearly voiced any time the church threatens to pull out of services rather than comply with state or federal laws.

Like all non-profit hospitals, Catholic hospitals receive about 50% of their funding from state and local government–only 3% of any Catholic hospital’s funds come from the church or church-related donations–which probably makes Catholic hospitals the largest “faith-based” organization in the country.  The USCCB would much rather have a protracted discussion about abortion, contraception coverage or “assisted suicide,” fever-making issues that bring out stark divides in voters and activists, than let the public conversation ruminate over their rules for Catholic hospitals.  And not only because public sentiment would likely not support their legally protected violation of patients’ privacy.  For this reason, this week’s contraception coverage debate serves the bishops very well, thank you.

Rather, the real conundrum we face in the discriminatory delivery of health care is structural.  We’ve grown into a system where patients must negotiate their health care decisions not with their family and their doctor but with their local bishop and their employer. As Jonathan Cohn wrote today at The New Republic:

The only reason employers are in the middle of health insurance is that companies started offering coverage in the 1930s and, somewhat inadvertently, became the primary source of coverage for working Americans. It’s not as if somebody made the conscious decision to give your boss a vote on what medical services you get.

The way we provide health care now is going to have to change, but few know what that change will look like.  If it were up to the USCCB, the expansion of Catholic service provision would keep us all in compliance with their version of the straight and narrow.  These dust-ups, about women’s health care in particular, are the perfect diversion.  While many Catholic leaders strongly support universal health care and meaningful reform of the delivery system that would remove employers (and insurers) from the equation, stronger embrace of patients’ rights opens up discussion of their denial of common medical services.

As to the rape and pillage of religious liberty under the existing “narrow” conscience clause, such statements depend on a sullied interpretation–by power-pursuing Christians and the inarticulate media alike–of what religious freedom means.  I could chase down Roger Williams (instead, read Jeff Sharlet’s take here) and Jefferson’s letter to the Danbury Baptists but I’m no historian.  I’m much more interested in examining how we can right now best provide medical services to citizens without violating their bodies, their faith, their conscience or their rights.  Even if Obama stands strong on the existing iteration of the clause, we have a long, long way to go.

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If you’re looking for the most egregious mischaracterization of the conscience clause issue, go to Amy Sullivan’s article today at the Atlantic where she writes, adopting the paternalistic tone of the bishops, that “a little gratitude from women’s health advocates and other liberals would be appropriate.”  (She doubled-down on the scolding of ungrateful women this afternoon by tweeting, “Would have thought that PASSING THE LARGEST EVER EXPANSION OF CONTRACEPTION ACCESS IN U.S. would be enough of an accomplishment on its own.” Caps are Sullivan’s.)

While some of Sullivan’s tone could perhaps be attributed to cheerleading Obama’s (misguided) appeal to religious leaders in an election year (see Sarah Posner at Salon for more), I can’t help but think that, like so many reporters trying to understand what’s so bad about these conscience clauses, she doesn’t know how much is at stake and doesn’t understand the health care delivery landscape.  Or she’s been duped by those protesting too much that religious freedom is violated when we don’t honor the bishops’ laws.  But believing what our individual conscience tells us to is kind of the point of freedom, no?  Freedom of religion as defined by the Catholic patriarchy isn’t really freedom of religion, is it?

The Catholic Church is very old and has a very long memory.  These men know exactly what they’re doing.

Ann Neumann is editor of The Revealer

*Death with Dignity was legalized in Oregon in 1998, Washington in 2008, Montana in 2010 and, according to advocates is not constitutionally illegal in Hawaii.  I wrote about the Catholic Church’s campaign against Death with Dignity for The Nation here.