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«Refusal Laws: Dangerous for Women’s Health Refusal laws (sometimes called “conscience” laws) permit a broad range of individuals and ...»

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Across the country, health-care organizations have been consolidating in an effort to reduce costs and compete more successfully in the market. Catholic hospitals “constitute the largest single group of the nation’s not-for-profit hospitals.”23 Twenty percent of percent of all hospital beds in health systems are owned or operated by the Catholic Church.24 The Catholic Church’s influence is spreading through mergers and affiliations between Catholic and nonsectarian hospitals. When nonsectarian hospitals merge with Catholic hospitals, they are pressured to adopt the rules governing Catholic hospitals, which are laden with policies forbidding various types of services.25 Mergers between Catholic health-care providers and nonsectarian providers curtail access to reproductive services, often without the knowledge of the patients served by the merged hospitals and health plans.26  Catholic teaching explicitly disapproves of contraceptive methods other than natural family planning (the rhythm method).27  The Ethical and Religious Directives for Catholic Health Care Services denounce assisted reproductive technologies such as in vitro fertilization and sperm donation, prohibit abortion care, prohibit treatment for an ectopic pregnancy, prohibit contraception other than natural family planning, ban prenatal diagnosis when undertaken with the intention of terminating the pregnancy if a serious anomaly is discovered, and bar permanent and temporary sterilization of both men and women.28  Between 1990 and 2001, an estimated 50 percent of mergers between Catholic and nonCatholic hospitals resulted in the elimination of some or all reproductive-health services.29 For instance, when Catholic Healthcare West replaced Gilroy, California’s only community hospital, with a Catholic hospital, all contraceptive services, sterilizations, and abortion services were eliminated, forcing women to travel 25 to 35 miles to receive basic family-planning care.30 More recently, a patient denied termination of a doomed pregnancy at a New Hampshire hospital was forced to travel 80 miles by cab to the nearest hospital not under religious restrictions.31

Broad Refusal Laws Allow Reproductive-Health Discrimination

Not only do broad refusal laws jeopardize women’s access to critical medical care, but in certain instances, they may foster discrimination. Some employers have invoked religious beliefs to discriminate against women’s reproductive choices, including those that have little or nothing to do with abortion.

 A Catholic school in Indiana fired a teacher for asking for time off to undergo in vitro fertilization treatment, calling the woman a “grave, immoral sinner.” Further, the school voiced concern that the woman’s choice could cause scandal if other faculty learned of it.32  A religious school in Missouri fired another teacher because she became pregnant out of wedlock. Her employer argued that it was entitled to fire the teacher for her personal reproductive-health decisions because the school is a religiously affiliated organization—even though the employee had no religious duties.33 These situations demonstrate the consequences of laws that allow individuals or organizations to discriminate against employees, students, or others on the grounds of a blanket claim of religious liberty. In an effort to push back against both these laws and these claims, the District of Columbia recently passed a law that prohibits employers from taking these kinds of adverse actions against their employees based on their reproductive-health decisions. Although antichoice lawmakers in Congress tried to block D.C.’s law from taking effect, pro-choice champions stood strong and ultimately defeated this attempt.34 The D.C. law is now in force.

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In addition to supporting proactive laws, like the one recently enacted in D.C., Americans have demonstrated that they oppose anti-choice refusal laws. They have made this clear at the ballot box and in polling.

Defeating Refusal Laws in the States In March 2015, Indiana passed a broad refusal law called the Religious Freedom Restoration Act, which would allow businesses and individuals to refuse to comply with laws that they claimed would burden their religious freedom. The law could be used to discriminate against LGBT individuals and reproductive-health services. Thankfully, there was immediate and significant opposition to using religion as an excuse to harm or discriminate against specific communities. Indiana experienced a forceful backlash against its refusal law from a broad range of groups, including businesses, universities, and church organizations. The result was that the anti-choice legislature and governor had to revise the law to minimize the negative impact. While it was not a total victory, it demonstrated support for the idea that our nation’s laws have long protected the freedom of religion and belief – but not the right to impose those beliefs on others.

In 2012, voters in North Dakota soundly defeated the first and only known ballot measure ever on the issue of refusals. Measure 3, the so-called Religious Liberty Restoration Amendment, would have barred lawmakers from imposing any restrictions on “religious behavior” unless the state had a “compelling interest.” If passed, it would have allowed individuals and organizations to refuse to provide reproductive-health care based on the claim of a religious objection. It was rejected by nearly 65 percent of voters, even in this conservative state. Measure 3 was so far-reaching that its implications could have threatened far more than access to birth control and abortion services. Not only could it have allowed a man to circumvent domesticviolence laws by claiming that his religion allowed him to discipline his wife and children, but it also could have allowed employers to fire unmarried pregnant employees, citing religious objections.





Public Polling on Refusal Laws  Nearly nine out of 10 Americans oppose refusal laws that allow certain institutions to refuse to provide health-care payment or services.35  Eighty-five percent of women believe that hospitals that receive government funds should not be allowed to prohibit doctors from providing any legal, medically appropriate service.36

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State courts have rejected challenges from anti-contraception groups looking to exempt themselves from laws with narrow, carefully crafted refusal provisions. In two key cases, state courts ruled clearly that contraceptive-equity laws with refusal provisions specifically for houses of worship are legal, are not an affront to religious liberty, and should not be broadened

to include religiously affiliated organizations or other contraception foes:

 Catholic Charities v. Superior Court: In 2000, Catholic Charities of Sacramento filed suit against the state of California, claiming that the state’s contraceptive coverage law is unconstitutional because it forces the agency to violate its religious beliefs by providing contraceptive benefits to its employees. The law contains a “religious employer” exemption, but Catholic Charities did not qualify for it. Recognizing that the law was designed to remedy gender discrimination, and not to intervene with church conflict, the California Supreme Court upheld its constitutionality. The court rejected all eight constitutional challenges asserted by Catholic Charities, and held that the law does not interfere with the autonomy of a religious organization or impermissibly burden the right of free exercise.37 In October 2004, the U.S. Supreme Court declined to hear the case, letting the California Supreme Court ruling stand.38  Catholic Charities v. Serio: Ten faith-based social-services organizations filed a similar lawsuit in opposition to New York’s contraceptive-equity law in 2002.39 They claimed that the law violated the New York and U.S. Constitutions. In 2006, New York’s highest court held that the law did not violate the state or federal Free Exercise Clauses or the federal Establishment Clause, which forbid the government from prohibiting the exercise of free religion, and therefore, the organizations were not constitutionally entitled to be exempt from its provisions.40 At the federal level, the question of whether for-profit companies and religiously affiliated nonprofit organizations can exempt themselves from birth-control coverage is decided by the U.S.

Supreme Court. In June 2014, in Burwell v. Hobby Lobby Stores, Inc., the high court held that closely held, for-profit corporations may deny their employees contraceptive coverage, citing religious exemptions.41 In the words of the dissent, the court’s majority ruled that the Religious Freedom Restoration Act, a federal law designed to protect the exercise of religion, “demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owners’ religious faith—in these cases, thousands of women” employed by such corporations.42 Meanwhile, legal challenges to the contraceptive-coverage policy accommodation brought by religiously affiliated non-profit organizations will be heard by the Supreme Court this spring. (For more information, please see the fact sheet, Insurance Coverage of Contraception.)

Refusal Laws in the States

Forty-seven states and the District of Columbia have laws that allow certain individuals or entities to refuse to provide women specific reproductive-health services, information, or referrals: AK, AZ, AR, CA, CO, CT, DC, DE, FL, GA, HI, ID, IL, IN, IA, KS, KY, LA, ME, MD, MA, MI, MN, MS, MO, MT, NE, NV, NJ, NM, NY, NC, ND, OH, OK, OR, PA, RI, SC, SD, TN, TX, UT, VA, WA, WV, WI, WY.43

Conclusion

Traditionally, refusal laws have recognized the complexity of human values, feelings, and religious beliefs by enabling individuals to opt out of providing health-care services to which they are religiously or morally opposed. However, efforts in Congress, state legislatures, and the courts to expand refusal laws to employers, health insurers, and pharmacists and to preclude not only services, but information and referrals, pose serious dangers to Americans’ health. Science—not politics—should determine medical decisions. Health-care institutions hold themselves out as providers of health care; they should have a duty to ensure that patients receive accurate information and appropriate care. Failure to provide this care—even for religious reasons—is wrong and may jeopardize patient health.

January 1, 2016

Notes:

Roe v. Wade, 410 U.S. 113 (1973).

Church amendment to the Public Health Service Extension Act of 1973, Pub. L. No. 93-45, Tit. IV, § 401, 87 Stat. 95 (codified at 42 U.S.C.A. § 300a-7).

NARAL Pro-Choice America & NARAL Pro-Choice America Foundation, Who Decides? The Status of Women’s Reproductive Rights in the United States (25th ed. 2016), at www.WhoDecides.org. In addition, West Virginia has a statute that provides an opt-out for physicians or persons who object to performing or assisting in an abortion on a minor. W. VA. CODE § 16-2F-1 to -9.

Rachel Benson Gold, Conscience Makes A Comeback In the Age of Managed Care, GUTTMACHER REP. ON PUB.

POL’Y, Feb. 1998, at 1.

In 1988, Congress inserted a refusal clause in the appropriations for the Bureau of Prisons, providing that funds could not be used to require any person to perform or facilitate an abortion for a prisoner.

Dep’ts of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act of 1988, Pub. L. No. 100-459, 102 Stat. 2186 (Oct. 1, 1988). In 1996, Congress enacted a bill providing that accreditation of postgraduate physician training programs could not be withdrawn based solely on a refusal to provide training in abortions. Omnibus Consolidated Recessions and Appropriations Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321 (Apr. 25, 1996) (codified at 42 U.S.C.A. § 238n).

For example, in 2006, 21 states considered 51 measures that would restrict women’s access to health care services by allowing health care entities and/or individuals to refuse to provide medical services.

Memorandum from the NARAL Pro-Choice America Legal and Policy Research Department (Nov. 28, 2006) (on file with NARAL Pro-Choice America). In 2007, 11 states considered 20 such measures and in 2008, 13 states considered 21 measures. NARAL Pro-Choice America & NARAL Pro-Choice America Foundation, Who Decides? The Status of Women’s Reproductive Rights in the United States (17th ed. 2008);

NARAL Pro-Choice America & NARAL Pro-Choice America Foundation, Who Decides? The Status of Women’s Reproductive Rights in the United States (18th ed. 2009).

FY’05 Consolidated Appropriations Act, Pub. L. No. 108-447, 118 Stat. 2809 (Dec. 8, 2004).

Ensuring That Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law, 73 Fed. Reg. 78,072 (Dec. 19, 2008).

Regulation for the Enforcement of Federal Health Care Provider Conscience Protection Laws, 45 CFR Part 88 (Feb. 18, 2011).

FY’05, Consolidated Appropriations Act, Pub. L. No. 108-447, 118 Stat. 2809 (Dec. 8, 2004).

S.165, Abortion Non-Discrimination Act (2011).

FY’12 Labor, Health and Human Services appropriations bill, House Appropriations Committee, (2011);

FY’13 Labor, Health and Human Services appropriations bill, House Appropriations Committee, (2012).

H.R. 940, Health Care Conscience Rights Act, (2015) FY’16 Labor, Health and Human Services appropriations bill, House Appropriations Committee, (2015).

Council on Ethical and Judicial Affairs, American Medical Association (AMA), Informed Consent, Ethical Opinion E-8.08, CODE OF MEDICAL ETHICS, at http://www.ama-assn.org/ama/pub/physicianresources/medical-ethics/code-medical-ethics/opinion808.shtml (last visited Oct. 6, 2015).

Brownfield v. Daniel Freeman Marina Hospital, 208 Cal. App. 3d 405, 412-14 (Ct. App. 1989).

Harris v. McRae, 448 U.S. 297, 339 (1980) (Marshall, J., dissenting).

Kaiser Family Found., Women and Health Care: A National Profile 24 (July 2005), available at http://kaiserfamilyfoundation.files.wordpress.com/2013/01/women-and-health-care-a-national-profilekey-findings-from-the-kaiser-women-s-health-survey.pdf (last visited Oct. 27, 2014).



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