Testimony of ACLU Reproductive Freedom Project Director Catherine Weiss on Refusal Clauses in the Reproductive Health Context Before the House Energy and Commerce Committee Health Subcommittee (7/11/2002)
TESTIMONY OF
CATHERINE WEISS
DIRECTOR AMERICAN CIVIL LIBERTIES UNION
REPRODUCTIVE FREEDOM PROJECT ON REFUSAL CLAUSES IN THE REPRODUCTIVE HEALTH CONTEXT BEFORE HEALTH SUBCOMMITTEE OF THE UNITED STATES HOUSE OF REPRESENTATIVES
COMMITTEE ON ENERGY & COMMERCE JULY 11, 2002 Chairman Bilirakis, Ranking Member Brown, and members of the Subcommittee: My name is Catherine Weiss and I am the Director of the American Civil Liberties Union's Reproductive Freedom Project. I am pleased to testify today on behalf of the ACLU about refusal clauses in the reproductive health context. The ACLU is a nationwide, nonpartisan, nonprofit organization of approximately 300,000 members dedicated to protecting the principles of freedom and equality set forth in the Constitution and in our nation's civil rights laws. Today, I will explain the practical impact of refusal clauses (sometimes also called religious exemptions or ""conscience clauses"") that permit entities and individuals to refuse to provide or cover health services to which they object on religious or moral grounds. I will provide a brief overview of federal refusal clauses. And I will offer an analytic framework for evaluating refusal clauses that balances protection for religious liberty with protection for the public health. Finally, I will explain that the public overwhelmingly rejects the principles that underlie overly broad refusal clauses, and I will urge you to oppose H.R. 4691 because it would impose unacceptable burdens on women of all faiths and no faith seeking reproductive health care in public, secular settings. The ACLU has a long, proud history of vigorously defending religious liberty. In Congress and in the courts, we have supported legislation providing stronger protection for religious exercise - even against neutral, generally applicable laws. For nearly a decade, the ACLU fought to preserve or restore the highest level of constitutional protection for claims of religious exercise. We were founding members of the coalition that supported the Religious Freedom Restoration Act in 1993, and we were instrumental in urging Congress to enact the Religious Land Use and Institutionalized Persons Act of 2000. We have also represented persons challenging burdens on the exercise of their religious beliefs. For example, we have sued to protect the right of Jewish students to wear a Star of David pendant at school; we have sued to defend the right of conservative Christian activists to broadcast on public access television; and we have filed a brief in support of two women who were fired for refusing to work at a Greyhound racetrack on Christmas day. We even offered to back the Rev. Jerry Falwell in his 2001 challenge to Virginia laws restricting ownership of church property. We have been equally vigilant in our advocacy of reproductive rights. The ACLU fought long and hard to persuade Congress to pass the Freedom of Access to Clinic Entrances Act to protect reproductive health clinics, patients, and professionals from deadly violence. We are currently key supporters of the Equity in Prescription Insurance and Contraceptive Coverage Act to ensure more widespread access to contraception for working women. We have participated in nearly every critical Supreme Court case protecting reproductive freedom, from Roe v. Wade to Planned Parenthood v. Casey to Stenberg v. Carhart. This history makes the ACLU well-positioned to assist the Subcommittee in its consideration of refusal clauses, which, as is illustrated below, can have a dramatic effect on the health of women. A CASE IN POINT In the Spring of 1994, a nineteen-year-old Nebraska woman, Sophie Smith,[i] was admitted to the emergency room at a religiously affiliated hospital with a blood clot in her lung. Tests revealed that Smith was approximately ten weeks pregnant, and that the clotting problem resulted from a rare and life-threatening condition exacerbated by the pregnancy. The hospital immediately put Smith on intravenous blood-thinners to eliminate the existing blood clot and to help prevent the formation of more clots that could kill Smith instantly if they lodged in her lungs, heart, or brain. Smith's doctors told her that she had two alternatives. She could stay in the hospital on intravenous blood-thinners for the remaining six-and-a-half months of her pregnancy. She would also need a procedure in which doctors would insert an umbrella-like device into one of her veins designed to catch blood clots before they reached a vital organ. Or she could have a first-trimester abortion, switch to oral blood thinners, and be released from the hospital. Smith decided to have the abortion. She wanted to go home to care for her two-year-old child. On the morning Smith was scheduled to have the abortion, the hospital lawyer appeared in the operating room. He announced that the hospital would not permit an abortion on its premises - even though four doctors had certified that an abortion was necessary to save Smith's life. The lawyer was armed with a state refusal law that stated, ""No hospital, clinic, institution, or other facility shall be . . . required to allow the performance of an abortion therein.""[ii] The procedure was canceled and ten days of dangerous delay followed. Smith wanted to be transferred to a facility that would perform the abortion, but moving her increased the risk that a blood clot would kill her. Because the blood-thinners she was taking made her prone to excessive bleeding, Smith's doctors felt that she should be treated in a hospital. But the hospital refused to reconsider its decision not to allow the abortion on its premises. Notwithstanding the risks to her health, Smith was ultimately transferred by ambulance to her doctor's office. He performed the abortion and sent her back to the hospital. Smith was lucky in the end. She survived the risks she faced when this hospital refused to treat her. But the risk itself was unacceptable. A BRIEF OVERVIEW OF FEDERAL REFUSAL CLAUSES Refusal clauses pertaining to certain reproductive health services swept the nation in the years following the Supreme Court's 1973 decision legalizing abortion in Roe v. Wade.[iii] Congress started the trend that same year when it passed legislation (sponsored by Senator Frank Church and known as the ""Church Amendment"") in reaction to a 1972 court order that had required a Catholic hospital to allow a sterilization procedure to be performed on its premises.[iv] The Church Amendment established that an individual's or entity's receipt of federal funds under certain public health programs is not a basis for requiring recipients with moral or religious objections to perform or assist in sterilization or abortion procedures, or to make facilities or personnel available for the performance of such procedures.[v] The legislation also prohibits certain federally funded institutions from discriminating in employment, or in the extension of staff or other privileges, against any health care professional because the professional refuses to perform or assist in an abortion or sterilization procedure based on a religious or moral objection; because the professional does perform or assist in abortion or sterilization procedures in a separate setting; or because of the professional's religious or moral beliefs concerning these procedures.[vi] In 1996, Congress adopted the Coats Amendment.[vii] The amendment prohibits the government from ""discriminating"" against medical residency programs or other entities that lose accreditation because they fail to provide or require training in abortion services. The amendment was passed after the Accreditation Council for Graduate Medical Education adopted a professional standard requiring residency programs in obstetrics and gynecology to provide abortion training. Under the standard applicable at that time, residency programs or physicians with religious or moral objections could opt out of the required abortion training, although programs remained responsible for insuring that willing residents received abortion training at another institution. The Coats Amendment established that the government could not ""discriminate"" against a medical residency program solely on the basis of the program's refusal to train new doctors in abortion practice or to refer them elsewhere for such training, even when a residency program lost its accreditation because of its failure to offer training. In 1997, Congress adopted new statutory requirements for the Medicaid program that, among other things, mandated that states inform patients about how to obtain covered services - including family planning services - that their Medicaid managed care organization did not provide.[viii] Congress made clear, however, that the new provisions did not require a Medicaid managed care organization to provide, reimburse, or cover any counseling or referral service to which the organization objects on moral or religious grounds.[ix] In 1998, Congress passed a hard-fought provision that required health plans participating in the Federal Employees Health Benefits Program (""FEHBP"") - which provides health insurance for federal employees - to cover prescription contraceptive drugs and devices.[x] Federal employees can generally choose from a wide variety of participating plans. Congress explicitly exempted from the requirement five religiously affiliated health plans that were then FEHBP participants. It also created an exemption for ""any existing or future plan, if the plan objects to such coverage on the basis of religious beliefs."" (In the years since, no additional plan has requested a religious exemption.) And, in 1999, the House voted against an amendment offered by Representative Chris Smith that would have broadened the exemption to plans that object to contraceptive coverage on the basis of ""moral beliefs."" STRIKING THE RIGHT BALANCE The framework we propose below for analyzing refusal clauses balances protection for the public health in general, reproductive health in particular, patient autonomy, and gender equality with protection for individual religious belief and institutional religious worship. We reject the imposition of religious doctrines on those who do not share them, especially at the expense of the public health. At the same time, we seek the maximum possible accommodation of an individual's religious or conscientious objections, so long as patients' rights are not compromised as a result. We also seek to insulate pervasively sectarian institutions from having to comply with laws that interfere with their religious practices. To strike the proper balance, policymakers and advocates must consider each proposed refusal clause carefully, tailoring it to its context. Concrete examples may be clearer than general principles: every rape survivor ought to be offered emergency contraception to protect herself from getting pregnant as a result of the assault, no matter where she is treated; an administrative assistant working at a Catholic university should not have to pay out-of-pocket for birth control pills because her employer believes contraception is a sin; but a church should not have to purchase contraceptive coverage for its ministers and other clerics; and a doctor, nurse, or pharmacist who cannot in good conscience participate in abortions or contraceptive services should be allowed to opt out, so long as the patient is ensured safe, timely, and financially feasible alternative access to treatment. The factors we identify for evaluating refusal clauses should lead to these kinds of fair results. A FRAMEWORK FOR ANALYZING REFUSAL CLAUSES Constitutional principles neither require nor forbid most refusal clauses.[xi] Nevertheless, legal principles are useful in constructing a framework for analyzing when an exemption is called for and what it should look like. Based in part on our study of the case law, the ACLU has identified two measures for evaluating refusal clauses. We consider first whether granting an exemption would impose burdens on people who do not share and should not bear the brunt of the objector's religious beliefs. Exemptions that impose little or no burden on others are more acceptable; exemptions that impose substantial burdens are less so. By ""burdens,"" we mean to include obstacles to health care and other critical personal interests, but we do not mean to include the mere exposure of third parties to religious practices or the tax or other financial burdens that may result from permitting certain exemptions. We consider next whether the exemption protects the religious practices of pervasively sectarian institutions or instead protects institutions operating in the public sphere. Exemptions that insulate core religious functions are more acceptable than those that spill over into the secular world. These measures are not part of any currently accepted legal test. But they reflect concerns that have been an undercurrent in many relevant cases without necessarily determining the outcome of those cases. Although each measure has independent importance, there is some overlap between the two: the imposition of particular religious beliefs on those who do not share them is less likely within a pervasively sectarian institution performing religious functions than in a more secular setting. Avoiding Burdens on Others In the reproductive health context, the risk of imposition on those who do not share the objector's beliefs is especially great when an employer, hospital, health plan, pharmacy, or other corporate entity seeks an exemption. The refusal of such institutions to abide by reproductive health mandates directly affects employees, patients, enrollees, and customers of diverse backgrounds and faiths. The law should not permit an institution's religious strictures to interfere with the public's access to reproductive health care. The courts have repeatedly shown themselves wary of the imposition of an institution's religious beliefs on others. In Catholic Charities v. Superior Court,[xii] for example, the California Court of Appeal explained at length why the state was justified in adopting a narrow refusal clause that permitted only pervasively sectarian organizations - such as churches, religious orders, and some parochial schools - to refuse to include contraceptive coverage in health plans for their employees. A broader exemption, granting a right to refuse to Catholic Charities and other church-affiliated organizations that employ diverse workforces, would have meant ""imposing the employers' religious beliefs on employees who did not share those beliefs."" An expansion of the refusal clause would also have ""undermine[ed] the anti-discrimination and public welfare goals of the prescription contraceptive coverage statutes.""[xiii] Another court expressed similar concerns in St. Agnes Hospital v. Riddick.[xiv] There, a board that oversees graduate medical education had withdrawn accreditation from a Catholic hospital's ob/gyn residency program because of several deficiencies, including the hospital's refusal to provide or otherwise allow its medical residents to obtain clinical training in contraception, sterilization, or abortion procedures. The hospital claimed that the withdrawal of its accreditation amounted to religious discrimination. The court rejected this claim, concluding that the state had more than sufficient reason to insist on comprehensive medical education despite the hospital's religious objection. These reasons included the public's ""overwhelmingly compelling interest in . . . competently trained physicians"" and the importance of preventing the hospital from ""impos[ing] its Catholic philosophy on its residents, many of whom are not Catholic.""[xv] The threat of imposition on others is significantly reduced when the law protects individual - as opposed to institutional - decisions about whether to provide certain health services. The federal Church Amendment contains antidiscrimination provisions that shield the conscientious decisions of doctors, nurses, and other practitioners. These provisions serve as a useful model in that they protect both those who refuse to participate in and those who provide abortion or sterilization procedures.[xvi] Laws that protect individual religious refusals offer important protections for health care professionals but may compromise the rights of patients unless adequate safeguards are included. There should be limits even to an individual health care provider's right to refuse. For example, whatever their religious or moral scruples, health professionals should give complete and accurate information and make appropriate referrals. Both legal and ethical principles of informed consent require doctors to tell patients about all treatment options, ""including those [the doctor] does not provide or favor, so long as they are supported by respectable medical opinion."" Doctors who refuse to treat should also ""refer the patient to a physician who does offer or favor the alternative treatment.""[xvii] Nor can a health care provider's religious or moral convictions ever justify endangering a patient's safety. Courts have been appropriately intolerant of lapses in medical professionalism, even when they are religiously motivated. For example, a federal appeals court held that a New Jersey hospital was not liable for religious discrimination in firing a labor and delivery nurse who twice refused on religious grounds to scrub for emergency obstetrical procedures. She refused, although in both cases the pregnant women's lives were threatened, and the hospital claimed her refusal in the second case dangerously delayed treatment for a hemorrhaging patient.[xviii] Insulating the Religious Functions of Pervasively Sectarian Institutions The second measure we use to evaluate refusal clauses focuses on the nature of the institution and activity exempted. Churches, temples, mosques, seminaries, and other pervasively sectarian institutions engaged in religious practices ought generally to be free of the requirements of laws repugnant to their beliefs. Among health care institutions, privately funded Christian Science sanatoria may exemplify those that should qualify for a religious exemption. Such sanatoria are staffed by Christian Science healers, and they attend only to those seeking to be healed exclusively through prayer.
When, however, religiously affiliated organizations move into secular pursuits - such as providing medical care or social services to the public or running a business - they should no longer be insulated from secular laws that apply to these secular pursuits. In the public world, they should play by public rules. The vast majority of health care institutions - including those with religious affiliations - serve the general public. They employ a diverse workforce. And they depend on government funds. A recent study found that Medicare and Medicaid accounted for 46% of total revenues to religiously affiliated hospitals in California in 1998, while unrestricted contributions, including charitable donations from church members, accounted for only .0015% (or $15 in every $10,000) of total revenues.[xix] These institutions ought to abide by the same standards of care and reproductive health mandates as apply to other health care institutions.
Again, in deciding Free Exercise claims, the courts have recognized the importance of distinguishing the religious from the secular context. In refusing to allow employment discrimination claims by ministers and other clerics against their churches, for example, the courts have concluded that the state should not intrude into matters of church governance and administration because a church's autonomy in these areas is central to its religious mission.[xx] The courts have also noted that the employees of churches and comparable religious institutions may be assumed, ""based on the religious nature of the employment, [to] agree with or willingly defer their personal choices to the religious tenets espoused by their employer.""[xxi] On the other hand, the courts have acknowledged the appropriateness of preventing entities engaged in secular endeavors from foisting their religious principles on members of the general public.[xxii] WHERE THE PUBLIC STANDS The ACLU recently conducted public opinion research - including focus groups and a nationwide telephone survey - on religious objections to providing reproductive health services. This qualitative and quantitative research shows that Americans overwhelmingly oppose laws that protect religious objectors at the expense of the patient's rights and the public health. The public opposes refusal clauses that threaten access to health care. · 89% oppose ""allowing insurance companies to refuse to pay for medical services they object to on religious grounds."" · 88% oppose ""allowing pharmacies to refuse to fill prescriptions they object to on religious grounds."" · 86% oppose ""allowing employers to refuse to provide their employees with health insurance coverage for medical services the employer objects to on religious grounds."" · 76% oppose ""allowing [hospitals] to refuse to provide medical services they object to on religious grounds.""
The public's insistence on access reflects its view that religious refusals jeopardize women's health and lives. Seven in ten Americans are concerned, for example, that if ""religiously affiliated hospitals are allowed to limit access to medical services, the health and lives of many women will be threatened."" The public believes that individuals must be allowed to make health care decisions for themselves. While proponents of refusal clauses often cast the issue as one in which religious liberty is pitted against reproductive rights, the public sees this dichotomy as false. · 72% agree with the following statement: ""Religious liberty is not threatened by requiring hospitals to provide basic medical care. We are not talking about limiting a person's ability to worship, but access to basic health care.""
Even when the issue is presented as a choice between the religious interests of institutions and the health care decisions of individuals, however, the public backs the patient. · 79% believe that it is ""more important to respect the personal conscience of individuals making difficult health care decisions"" than to ""respect the conscience of a religious hospital."" · 69% believe that it is ""more important to protect the reproductive freedom of women"" than to ""protect the religious freedom of religious hospitals.""
Moreover, the public believes that the government's first responsibility is to protect the public health. · 72% are more concerned that the government hold ""all hospitals - whether religiously affiliated or not - to the same standards"" than they are about keeping ""the government from forcing religious hospitals to violate their beliefs."" · 83% believe that ""if a hospital receives government funds, it should be required to provide basic, legal medical services, regardless of the hospital's religious objections.""
Overall, our public opinion research shows that Americans are deeply troubled by the idea that religious interests could come between them and their health care needs. H.R. 4691 - A BROAD AND DANGEROUS REFUSAL CLAUSE Based on the framework outlined above, the ACLU opposes H.R. 4691, a bill sponsored by Chairman Michael Bilirakis (R-FL), Majority Leader Dick Armey (R-TX), and Representative Joseph Pitts (R-PA). H.R. 4691 would allow a broad range of health care entities to refuse to comply with a wide array of federal, state, and local requirements to provide reproductive health services. As noted above, the United States Constitution does not require any exemption - let alone such a broad
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