The Bishops Versus Women’s Health: The Gloves Are Off

With Pope Francis having been named Time Magazine’s Person of the Year, the United States Catholic Bishops, to be sure, will sing his praises to the press, but at the same time, they cannot be pleased that this is likely to re-energize the circulation of Francis’s statement that some bishops have been “obsessed” with their political war against abortion and gay rights, when there are other more important issues to address, such as dire poverty. Nor can it be comforting for the Bishops to have such a spotlight thrown on the man who is encouraging the Church to be more inclusive and loving when their own modus operandi is, well, rather different. We are, make no mistake about it, in the midst of a war over whether the Bishops and those who agree with them, or individual women themselves, will control women’s bodies and health.

There are two major battlefields in this war right now: one in the workplace, and the other in Catholic hospitals. More specifically, the first battlefront is situated in the large for-profit companies (those with over 50 employees) that are fighting to control their employee benefit compensation plans so that those plans accord to their owners’ personal religious beliefs, while the second involves pregnant women in medical distress in Catholic hospitals.

The Workplace Battlefield

The Supreme Court has now inserted itself into the workplace battlefield by taking the Affordable Care Act contraception mandate cases: The en banc decision by the U.S. Court of Appeals in the Hobby Lobby case, which I discussed here, and the decision by the U.S. Court of Appeals for the Third Circuit in Conestoga Wood, which the Court will hear in Spring 2014. The legal issue in the case is whether a large company can refuse to include in its health-care plans medical care for women that is objectionable to the owners of the company on religious grounds. These companies have objected to emergency contraception, IUDs, and/or all contraception used for any purpose, depending on the personal views of a particular company’s owners.

In the Obama Administration’s first iteration, the women’s medical care mandate only excepted religious organizations, which left nonprofits and universities having to provide such care to their employees. In response to the very public pressure by the Bishops, however, the Obama Administration backed off and brought nonprofits and universities under the exception. Only for-profit companies therefore remain in play with respect to this issue, and the Bishops have poured their public relations and legal efforts into this final battlefield.

The remaining for-profit employers that are governed by the mandate are only those companies that are also covered by Title VII, which means that they are not non-profits or religious corporations, and that they are, accordingly, forbidden by law from hiring based on religion or gender. So we must assume that they have religiously diverse workforces, where the employees do not necessarily share the religious beliefs of the employer.

The employees also have the protection under federal law, as do all patients, to have complete privacy over every medical decision under HIPAA. The employers, who have invoked the Religious Freedom Restoration Act (RFRA) should have a tough road proving that the mandate imposes a “substantial burden” on them, a showing which RFRA requires as a threshold issue. With the facts now all out on the table, where is the “substantial burden” on the employer in the following scenario?

A company (likely through an ERISA-governed plan administrator) pays, with fungible money, for health care coverage as part of its employees’ compensation benefit package. Employees, under cover of HIPAA, and their personal doctors make private decisions about health care the company’s owner should never know about.

Is there a financial burden on these for-profit companies? No. It is a fact that healthcare plans that include the medical care that the Catholic Bishops (and the evangelicals involved in some of the cases) object to—contraception, sterilization, and abortion—generate fewer costs overall, so there is no fiscal harm.

At most, a for-profit owner has a psychological injury in merely “knowing” that it is possible, though not necessary, that some woman employee, who has a right against her employer to believe what she wants, will choose, through completely private consultation with her doctor, to use some FDA-approved medication that the company’s owner finds religiously objectionable.

Talk about piling inference upon inference to prove a “burden,” let alone a “substantial burden”! How can you be burdened by what is none of your business under federal law, or by an independent decision made by a woman whom you can’t tell what to believe? No matter how often the men on this battlefield beat their chests about the “substantial” pain of this burden, the burden on the for-profit employer governed by Title VII in these cases is trivial.

Its trivial character is underscored, moreover, when one considers that there are female employees who will need the care that is causing this “burden” on the owners’ beliefs because they have been raped, or because they need pregnancy prevention to avoid serious risks to health, or even death. The RFRA-based demands for an exemption from the mandate include no such exceptions, to my knowledge. Violence against women and issues of life and death make this a war, not just a political spat.

The Other Battlefield: Catholic Hospitals and Women Who Are in Medical Distress During Pregnancy

Lest there be any doubt that the Catholic Bishops intend to prevent lifesaving (both psychologically and physically) medical care even in cases of danger to a woman’s health or life, welcome to the second battlefield: the Catholic hospitals. The Catholic Bishops actually promulgated an explicit statement on their preference for fetuses over suffering and medically-distressed pregnant women in their Ethical and Religious Directives for Catholic Health Care Services, or “Directives,” which control Catholic hospitals’ treatment of pregnant women.

A recent lawsuit filed by the Americans Civil Liberties Union (ACLU) in the Eastern District of Michigan challenges those Directives on medical negligence grounds. It alleges that a pregnant woman, Tamesha Means, a mother of three children, was rushed to Mercy Health Partners hospital when her water broke in the 18^th week of pregnancy, and that the care she received was medically negligent because of the Bishops’ Directives.

Her story is not the only one, and it is chilling. Here is how the complaint summarizes her initial trip to the hospital:

“Because of the Directives, MHP did not inform Ms. Means that, due to her condition, the fetus she was carrying had virtually no chance of surviving, and continuing her pregnancy would pose a serious risk to her health. Nor did MHP tell Ms. Means that the

safest treatment option was to induce labor and terminate the pregnancy. MHP also did not tell Ms. Means that it would not terminate her pregnancy, even if necessary for her health, because it was prohibited from doing so by the Directives.”

What follows is a story of a woman in intense pain, who re-visited the hospital several times, as the pain of the contractions increased to the point where she described it as a “10” on a scale of 1-10, and a double infection set in. Under the Directives, the hospital doctors kept sending her home with nothing more than painkillers and platitudes. Eventually, as they were getting ready to send her home once again, the fetus’s feet breached her cervix, and she had an excruciatingly painful breach delivery, followed by the death of the fetus 2.5 hours later.

It would be one thing had the issue in this case involved an elective abortion by a woman who was not in medical distress. Then a Catholic hospital could turn her away to let her find other treatment. But, instead, this involved serious and immediate threats to a woman’s health and even potentially to her life.

Advocates for the employers that are discussed above keep saying that it is no big deal to make women pay for some “trivial” aspects of their own medical care, but when the issue is put in context, this crusade against women’s medical care is a very big deal. Means’s case shines a harsh light on their war plan: the so-called “unborn” are actually a higher priority than a raped or intensely suffering woman, and should always trump a woman’s choices over her body, regardless of her personal beliefs. This is about hegemony.

I had to laugh when I read that Notre Dame law professor Richard Garnett is worried that what he regards as “accidental aspects of the case—the Citizens United debate, the “war on women” rhetoric from the last election, the controversies about health care reform—will distract the court from the more specific legal question presented” involving RFRA.

Yet, I must admit that Garnett has nicely summarized the plan of attack for the employers and the Bishops in these cases: Treat women’s medical needs, rape, suffering, and even potential death, as “accidental,” mere “rhetoric,” and just a “distraction.”

Pope Francis might well tell them that their obsession has clouded their better judgment.