RD is thrilled to welcome Patricia Miller as its newest blogger. Miller, whose book Good Catholics: The Battle Over Abortion in the Catholic Church is due out in May from UC Press, will write about the emerging issues related to the Catholic hierarchy and reproductive rights, as well as the Catholic Church and Catholicism more broadly. Read her first two blog posts here and follow her on Twitter: @patti_miller. –eds
The 41st anniversary of Roe v. Wade, a landmark decision that dealt in no small part with religious and moral opposition to a personal decision, is an appropriate moment to revisit one of the most overlooked aspects of the debate over the Affordable Care Act’s contraception mandate: just what a long-term, strategic battle the quest for “religious freedom”—the freedom to not provide birth control—has been for the U.S. Catholic hierarchy.
When the Obama administration first announced in 2011 that employer-based health plans would be required to offer contraceptives as part of the preventive services guaranteed under the act, the U.S. Conference of Catholic Bishops (USCCB) framed it as part of a growing assault on religious freedom by the administration. Conflating this announcement both with the administration’s refusal to mount a constitutional defense of the Defense of Marriage Act (DOMA) and a move by the DHHS to disqualify the USCCB from a refugee services contract (because it refused to provide the full range of sexual health services to women who had been victims of trafficking) the bishops charged the administration with waging an unprecedented war to “neuter religion” in the public square and declared that they would be forced to mobilize to fight.
The fact is, however, that Catholic bishops have been waging a nearly fifteen-year campaign to position any effort to expand access to contraception as an assault on religious freedom. This campaign is actually somewhat surprising as the bishops were more or less agnostic about contraception for quite some time. In the early and mid-twentieth century they fought to suppress access to contraception by blocking efforts to create publicly funded family planning programs or family planning clinics in low-income neighborhoods that served working-class Catholics, even as they knew that better-off women could access contraceptives through private physicians.
But the approval of the Pill in 1960 and growing bipartisan support in Congress for a national, federally funded family planning program eventually swamped their opposition and they gave up the fight. I’ve been told by more than one source that by the mid-1970s, officials from the bishops’ conference routinely assured public officials that they didn’t care about contraception anymore—they were devoting all their efforts to the battle against abortion.
The issue lay more or less dormant until the late 1990s. Then the Food and Drug Administration did two things. First, it approved the first emergency contraceptive. While public health officials hailed this as a major breakthrough to help prevent unplanned pregnancy, the Catholic bishops were among the earliest and most aggressive opponents of emergency contraception. In an attempt to suggest that it would not be licit under Catholic doctrine the bishops drew on specious claims from far-right opponents of contraception that it might act as an abortifacient because it could prevent a fertilized embryo from implanting in a woman’s uterus. This despite the fact that their own directives for Catholic hospitals said it could be offered to women who had been raped. (And despite the mainstream medical community’s position that pregnancy doesn’t commence until implantation.)
This was followed by the FDA’s approval of Viagra. What did an erectile dysfunction pill have to do with contraception? For several years before the approval of Viagra, bills to ensure that health insurance plans covered prescription contraceptives had been languishing in state legislatures, blocked by social conservatives—including lobbyists for the Catholic hierarchy—who insisted that contraceptives were a “lifestyle choice,” not part of the continuum of women’s health care needs. When Connecticut considered such a measure in 1999, one local priest told the legislature that forcing insurers to pay for contraceptives would only benefit “playboys.” It’s easy to forget in the debate over whether insurers should have to offer free contraceptives that only a decade ago most women with insurance were still paying for contraception out-of-pocket, to the tune of some $500 a year, which meant a woman’s lifetime costs for contraception could easily reach $10,000.
But the approval of Viagra, which was clearly a lifestyle drug, and the rush by most insurers to cover it, effectively destroyed the lifestyle argument. State after state approved measures requiring insurers to cover contraceptives, and large insurers changed their policies that segregated contraceptives from other drugs, making it a routine part of prescription coverage.
It was at this very moment—when contraception was about to be enshrined as a basic health care service—that the Catholic bishops suddenly reentered the debate over contraception in a big way, arguing that forcing Catholic employers to cover contraceptives was a violation of their “conscience”—and therefore of their religious liberty. Traditional conscience protections were applicable only to protecting an individual from being forced to take part in an act such as abortion that was held to be potentially morally problematic, so it’s difficult to overstate what a novel reading of conscience protections this represented. The federal Church Amendment, passed soon after Roe v. Wade, offered conscience protection only to individuals or hospitals from having to perform an abortion or sterilization procedure against their will.
But beginning in the late 1990s, the bishops undertook a concerted effort to raise contraception to the level of moral approbation that had previously been reserved for abortion. They did this by claiming not only that contraceptive equity measures would require coverage of abortifacient emergency contraception medications, but that the mere participation of a Catholic in a commercial insurance pool that offered contraception was morally unacceptable.
They began pushing at the state and national level for broad-based conscience measures that would allow any employer or insurer to refuse to provide services to which they had a religious or “moral” objection—though of course no one had an objection to anything other than women’s reproductive health services. If the bishops could get a broad conscience exemption for contraceptives enshrined into law, they could return birth control to second-class status as an optional health care service that employers could refuse to provide. They were in effect trying to use the law to prevent both Catholics (who, with some 98 percent using contraceptives in their lifetime, had largely rejected the Vatican’s prohibition of contraception) and non-Catholics from accessing contraception through employer-based health plans.
Their evolving argument was dealt a huge setback, however, when in 2001 the California Supreme Court ruled that there was no need to exempt employers, even religiously affiliated ones, from that state’s contraceptive equity law beyond the narrow exemption granted to explicitly religious employers whose primary mission was the inculcation of faith and who employed people of their own faith. It was a decision that the U.S. Supreme Court let stand and it was reaffirmed by a similar decision in New York, which seemed to settle the matter. So, contrary to the outrage expressed even by some liberal Catholics, it made perfect sense that the Obama administration would use this model for the narrowly drawn conscience exemption that was originally included in the Affordable Care Act.
But the Catholic hierarchy is quite good at taking the long view. Over the decade following the Supreme Court’s ruling they made the expansion of conscience rights a priority. In 2002, the bishops’ conference, the Catholic Health Association (which represents Catholic hospitals), and Catholic Charities (one of the nation’s largest nonprofit social services providers and the plaintiff in the California lawsuit) joined forces to coordinate strategy on the expansion of conscience clauses. Unsurprisingly, they found a friend in the Bush administration, particularly as Christian conservatives had taken up the cause in the hope of broadening the culture war-aspect of consciences clauses by looking for “moral” exemptions from providing services to gay people.
The bishops got the Bush administration to offer a separate “Catholic” plan in the federal employees health program that didn’t offer abortion, sterilization or contraception—further cementing the idea that Catholics couldn’t even touch contraception by participating in an insurance pool that offered it to those who wished to use it. The Bush administration also promulgated a broad federal conscience clause that would allow any health care provider to opt out of providing just about any service to which they had a “moral” objection. Not coincidently, the rule, which President Obama rescinded after he came into office, could have been used to override state contraceptive equity laws and laws designed to make sure that Catholic hospitals offered emergency contraception to rape victims—two of the bishops’ biggest policy goals.
By the time the Obama administration rolled out its contraceptive mandate, it ran headfirst into a “conscience” narrative that the bishops had been constructing for more than a decade: that it was a violation of an individual’s religious liberty, or an employers, to not allow them to decide what health services other people could and couldn’t get in an insurance plan. As a result, what seemed like a simple effort to level the playing field in terms of women’s health care costs and help prevent unwanted pregnancy, which is endemic in the United States, turned into a major battle. The ultimate goal of this narrative is to re-marginalize contraception, much as abortion has been marginalized and segregated from the continuum of women’s health care. Just like in the mid-twentieth century, the bishops seek to ensure that only relatively well off women who can afford to buy it privately can get birth control. Everyone else will just have to pray they don’t get pregnant.