Brilliant constitutional lawyer David Boies has a stellar reputation for presenting savvy arguments before the Supreme Court. Boies contends the Obama administration's recent so-called "mandate" contains no constitutional conflict that exempts churches but requires religious-affiliated employers to provide contraception at no cost to their female employees. He notes that in fact, nearly two-thirds of the states already require such a mandate or do not provide any specific exemptions even for employers such as churches and other places of worship whose primary purpose is imparting religious beliefs.
According to Boies, the issue is merely another component of labor law that applies universally to all employers, like adhering to the minimum wage or safety standards.
Obama's not the only one concerned this election year — GOP presidential front-runner Mitt Romney reversed himself while Governor of Massachusetts to create just such a mandate. On Dec. 16, 2005, the official newspaper of the Boston Archdiocese, the Boston Pilot, reported online that then Governor Romney instructed the state Department of Public Health that Catholic and other private hospitals were not exempt from Emergency Contraception Access Act law, requiring them to dispense emergency contraception to all rape victims.
"In doing so, Romney overruled the department's finding that privately run hospitals do not have to provide contraception or abortions" after he had "previously taken the position that the new law requirements were superseded by a 1975 law that provided privately owned hospitals with conscience exemptions for abortion and contraception services," Daniel Avila, associate director of Public Policy for the Massachusetts Catholic Conference (MCC), said.
"They've taken the position now that the preexisting statute somehow does not shield Catholic and other private hospitals from this new mandate."
Maria Parker, then interim executive director of MCC, said unequivocally that the provision encouraged Catholic hospitals to do something other than what they already were practicing, which would cause them to go against their religious beliefs.
"This is a serious interference with conscience and religion," she said in a 2005 testimony before the state legislature's Joint Committee on Public Health.
While Romney muddles the waters and skates around his "mandate" past, the legislature never rescinded the 1975 law. NARAL Massachusetts, a pro-abortion group, found in 2008 that "St. Elizabeth's Medical Center in Brighton and Holy Family Hospital in Methuen told NARAL Pro-Choice researchers posing as rape counselors that they in fact refuse to offer emergency contraception, according to a NARAL report."
The NARAL report found that five out of nine Catholic hospitals in Boston "make emergency contraception readily available, compared to 95 percent of the 61 secular hospitals."
According to William D'Antonio, a sociologist at the Catholic University of America, only about one-third of 50 million U.S. Roman Catholics — more than 15 million — attend Mass once a week. Similar to Europeans, D'Antonio cites recent polls showing 95 percent of American Catholics have said they use contraceptives, while 89 percent said the decision to use contraceptives should be their own, not from the Church.
A nonpartisan February tracking poll shows that a majority (55 percent) of Americans agree "employers should be required to provide their employees with health care plans that cover contraception and birth control at no cost." Nearly 60 percent of Catholic respondents support the birth control rule.
One come-to-Mass-every-week Eucharistic Minister last Sunday at St. Matthew's Cathedral snidely commented, "How out of touch do the old men in our Church hierarchy need to be before they move from the Middle Ages into the 21st Century? This is about no co-pays for women's health access, not paying for or sponsoring abortion."
He continued his tirade, "They cling to ridiculously outdated dogma but nibble at the edges of trivia. Somehow saying ‘with your spirit' rather than ‘and also with you' is a prioritized change to better praise God. Forget that Directive 36 allows for day-after contraception as well. Give me a break!"
Directive 36 refers to the U.S. Conference of Catholic Bishops' Ethical and Religious Directives for Catholic Health Care Services. It states "Church teaching supports providing emergency contraceptives to rape victims who are not pregnant since it can be considered a form of defense against an unjust aggression." It further references the specific provision, "A female who has been raped should be able to defend herself against a potential conception from the sexual assault."
The wording continues quite specifically, "If, after appropriate testing, there is no evidence that conception has occurred already, she may be treated with medications that would prevent ovulation, sperm capacitation or fertilization."
Susan Wood, a health professor at George Washington University's Jacobs Institute of Women's Health sums it up, "This is an employee benefit issue. This is not the Catholic Church having to provide a service directly. No Catholic hospital is going to be required to write a prescription or provide a pack of pills."
Gary Caruso, Notre Dame ‘73, serves in the Department of Homeland Security and was a legislative and public affairs director in President Clinton's administration. His column appears every other Friday. He can be contacted at GaryJCaruso@alumni.nd.edu
The views expressed in this column are those of the author and not necessarily those of The Observer.
