A Catholic House Divided Over Reproductive Health Care: Bishops Launch a New Campaign

The Catholic bishops have launched a new political campaign. In the wake of the decision by the Department of Health and Human Services to require that insurance plans cover some non-abortion related reproductive health care as basic preventive health service, the bishops have established an “Ad Hoc Committee for Religious Liberty.”

Joining the USCCB is the Catholic Health Association, whose member hospitals would be required to insure their employees for services such as contraception, voluntary sterilization, and emergency contraception (EC). As currently written, no parish would have to provide this coverage, nor would the bishops’ conference.

It’s important to note that the new HHS requirements do not require Catholic hospitals to provide these services to patients or employees, who would need to go elsewhere to get them. They simply require that they be included in the health plan the employer offers and that, as with other services in the plan that carry no co-pay, they too are offered without a co-pay.

Catholic hospitals are explicitly exempted from providing abortions and sterilization (abortions are not covered in any event by the new HHS insurance regulations); they need not offer contraceptive services; they are not required to provide condoms or information to prevent HIV/AIDS or the transmission of any other sexually transmitted infection and, in most states, Catholic hospitals do not have to provide EC in their emergency rooms for women who have been raped—and in no state are they required to provide it for any reason other than rape.

Are not the Catholic health providers’ consciences sufficiently protected by the explicit and tacit provisions in our laws and regulations that allow them to refuse to offer services they consider morally objectionable? Is it not sufficient that they aren’t even required, in most instances, to tell patients where they might find services the Catholic hospital refuses to provide (an ethical obligation many of us believe should be required of all recipients of public funding)? What, exactly, prevents a Catholic hospital from saying, kindly and calmly, “I’m sorry, we don’t provide contraception here as it is against the moral teachings of our church. However, I respect that you may have a different position or religious belief. If you wish, I can tell you where you might go to get the service you wish.”

Many years ago, when Fr. Michael Place (then director of CHA) and I were on a panel at the American Bar Association regarding conscience and Catholic hospitals, I asked him a very simple question: “I respect your right to refuse to perform a procedure you consider immoral, but I do not understand how you can feel so passionately for your own right to follow your conscience and that you seem not to see that women and patients also have consciences. How are you going to honor their conscience if we as a society agree to honor yours?” He had no answer, and it seems that the Catholic bishops and the CHA are still unable to address that dilemma.

I do not put Catholic hospitals or their administrators and staff in the same category as the bishops. The bishops are not simply committed to protecting their right to act out of conscience. The Timothy Dolan-led bishops’ goal is to make contraception as unavailable as possible. By seeking to limit insurance coverage for it, they want secular society to send the message that it is immoral.

About a year ago, at a conference on civility and abortion at Princeton University, the Pulitzer Prize-winning historian David Garrow made the claim that Catholics opposed to abortion were also intent on banning contraception. He was roundly criticized by socially conservative, anti-legal abortion Catholics as bigoted and wrong. The bishops’ action against health insurance coverage for contraception, however, sadly supports Garrow’s argument.

The women’s religious orders that sponsor Catholic hospitals are far more nuanced on these issues. They have real experience of the challenges women face in dealing with their fertility, and are much more sympathetic to women who make choices that differ from those demanded by bishops and popes. Their history includes courageous disagreement with bishops’ restrictions on access to reproductive health services. That history tells a story of the complex path one has to follow if one wishes to be both faithful to Church processes and to help women and men lead healthy sexual and reproductive lives. Catholic hospitals are, at times, caught between the devil and a hard place; between the bishops and the state.

And so, I have been trying to understand why the CHA, which knows full well that opposition to providing contraceptive and sterilization services is not the same as insuring those services, has joined the bishops in this fight. More importantly, it remains to be seen whether the Obama administration will understand that it is quite possible that many Catholic hospitals would have no moral problem covering their employees for contraceptive services should the administration stand firm. Some may in fact fervently wish to help the many low-paid women and men on their staff lead happy and healthy sex lives, and to have only the number of children they can feed, clothe, educate, and love. Perhaps I’m a romantic, but I like to think they’re actually hoping that the administration turns down the CHA’s appeal for an exemption from providing that coverage.

Conscience Over the Bishop in Phoenix

Let’s talk process. Catholicism has a well-developed theory about cooperating in “evil.” While I don’t for an instant believe that either using contraception or having your tubes tied is evil, the Catholic hierarchy does think these decisions are wrong, and that Catholic individuals and institutions cannot be actors in providing such services. But, the magisterium (the teaching authority of the Church, which traditionally has included a dialogue between bishops and theologians, but has been reduced to what the bishops and popes think) recognizes that there are different levels of participation—or cooperation—in forbidden acts. Handing a woman a pill or tying her tubes is forbidden “formal” cooperation and is a far cry from providing an employee with an insurance policy that lets her decide whether to use the provision in it for contraception. Agreeing with the woman and intending by your actions that she engage in contraceptive acts constitutes formal cooperation and would be forbidden, but does issuing an insurance policy mean you agree with all the services it provides? One may not approve of sex outside of marriage, but providing maternity coverage for unmarried women is not approving of their sex lives. Nor is providing Viagra coverage for unmarried men approval of their sexual choices.

By the same reasoning, are you formally cooperating if you, or your hospital, have no direct, hands-on role in forbidden services? Many Catholic hospitals have in essence private doctor’s offices within their complex. In many of those offices, doctors provide contraception, condoms to prevent STDs, and even prepare patients for sterilization at other facilities. No staff is on hospital time, billing may be handled separately from the hospital, and few except the most die-hard conservatives would claim the hospital is formally cooperating with these doctors. In many instances where Catholic hospitals have merged with non-Catholic hospitals, conditions of the merger have required that the non-Catholic partner hospital continue to provide a range of forbidden services with the exception of abortion, and Catholic hospitals have found ways to make that possible through separate spaces, billing procedures, and staffing. While some of these practices have been ruled unacceptable, many have passed both local bishops’ and Vatican scrutiny.

They are considered “material cooperation,” but not formal. It is not the intention of the Catholic staff or institution to provide those services, it does not formally provide them, and it expresses its disapproval in this way.

In some instances the facility is even more removed from the acts as it only indirectly provides them under the duress of a government or merger requirement that, if not met, would cause greater evil—the hospital might have to close and stop serving the needy all together, or the staff might opt to work in the more expensive hospital across the street.

Should the administration decide that it is in the best interests of women’s health that employers who wish to be part of the Affordable Health Care for America Act provide such coverage, it seems clear that Catholic hospitals could do so under the claim that such cooperation is immediate material cooperation under duress, and not formal cooperation. They could then tell their bishops that they have no real choice if they wish to continue to serve the poor and needy, which is their major commitment.

My belief that some Catholic hospitals have had it with attempts by bishops to “play doctor” is buoyed by Phoenix’s St. Joseph’s Hospital, which accepted its bishop’s decision to strip it of its formal identity as a Catholic hospital rather than comply with his demand that it agree not to perform abortions necessary to save women’s lives. The bishop, Thomas Olmstead, had objected to the hospital ethics committee’s decision to allow an abortion when a woman who was eleven weeks pregnant faced death from pulmonary complications.

The bishop announced in March of 2010 that a Sister of Mercy on the staff who had participated in the decision had “automatically excommunicated herself” by the act of approving the abortion. Since the Sisters of Mercy still consider her a member of the order in good standing, however, we find the strange situation of a nun whom the bishop thinks has excommunicated herself still functioning as a nun. In subsequent discussions between the hospital and its parent, Catholic Healthcare West, the bishop demanded that both the hospital and CHW agree that an abortion in similar circumstances would never be performed again and acknowledge that the decision to perform the abortion was wrong. He demanded greater direct oversight over hospital compliance with Catholic rules governing health care. Both CHW and St Joseph’s refused to comply and in December Bishop Olmstead announced that he had stripped the hospital of its status as “Catholic.”

Choice advocates often point to this story as an example of how the Catholic bishops control Catholic hospitals. I think of it as an example of how the bishops can’t. Like Catholics themselves, Catholic hospitals have a mind and a heart of their own. Bishop Olmstead couldn’t get a hospital in his Diocese to bow to his interpretation of what being a Catholic hospital meant. The hospital preferred to follow its own conscience, as did its parent CHW, which is comprised of 40 hospitals and more ancillary facilities in California, Arizona, and Nevada.

Olmstead, in this case, stood alone. No other bishop with a CHW hospital in his diocese demanded that it or its hospitals substitute their medical judgment for the bishops.

The issues surrounding religion and conscience are complex, and especially so when the religion is Catholicism and the subject is women and reproduction. We have come to hold in high regard individuals who follow their conscience when the going gets tough. Whistleblowers; pacifists who will not fight and kill in war; interrogators who will not follow an order to waterboard; doctors in the Soviet Union who would not use psychotropic drugs on dissidents in mental hospitals; and Catholic hospitals who will not let women die or who want to respect women’s consciences.

Now is the time for Catholic hospitals to honor the consciences of employees and patients, as they ask society to honor theirs.

fkissling@gmail.com'

Frances Kissling is a visiting scholar at the Center for Bioethics at the University of Pennsylvania and former president of Catholics for a Free Choice.