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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 serv, ices 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." 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, pa, tients, 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, 12 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 ex. emption, 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.” 13
Another court expressed similar concerns in St. Agnes Hospital v. Riddick. 14 There, a board that oversees graduate medical education had withdrawn accreditation from a Catholic hospital's ob/gyn residency program because of several defi. ciencies, 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.” 15
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. 16
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.” 17 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. 18 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 pursuitssuch 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. 19 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.20 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.” 21 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.22
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 lim
iting 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 indi
viduals 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 reli
giously 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 ob
jections." 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 exemption—from compliance with public health laws. Moreover, H.R. 4691 fails the test set forth in the ACLU's framework because its burdens would fall primarily on those who do not share the beliefs that motivate the refusal and because it protects institutions engaged in the public and secular provision of health care.
H.R. 4691 would build upon the Coats Amendment, an existing federal refusal clause described above. If enacted, the newly expanded language would provide (amendments in italics):
The Federal Government, and any State or local government that receives Federal financial assistance, may not subject any health care entity to discrimination on the basis that,
(1) the entity refuses to undergo training in the performance of induced abortions, to require or provide such training, to perform, provide coverage of, or pay for induced abortions, or to provide referrals for such training or such abortions;
For purposes of this section:
(2) The term “health care entity” includes an individual physician or other health professional, a postgraduate physician training program, a participant in a program of training in the health professions, a hospital, a provider sponsored organization, a health maintenance organization, a health insurance plan or any other kind of health care facility, organization or
plan. Practical Effects of the Proposal
The main effect of H.R. 4691 is to prohibit a governmental entity from “discriminating"—that is, treating a health care entity differently on the basis of the entity's refusal to perform, refer, train, cover, or pay for abortions. But what constitutes "discrimination” would no doubt be the subject of debate and potential litigation.
H.R. 4691 could have the following effects, among others: • It would compromise the
ability of Title X clients to obtain information critical to their health. Title X, which provides federal funds for contraceptive services for low-income individuals, requires that grantees provide a referral to a qualified abortion provider upon request as part of non-directive options counseling for pregnant women. H.R. 4691 would prohibit the federal government from enforcing this regulation if it were deemed “discriminatory” to deny Title X grants to providers that refuse to make abortion referrals. The bill could thus undermine federal standards and compromise the health of low-income preg
nant women by denying them critical information. • It would interfere with the delivery of abortion services to poor women
in dire emergencies. H.R. 4691 would impede a state's ability to comply with the federal Hyde Amendment, which mandates coverage of abortions for women in the Medicaid program in cases of rape, incest, or where the pregnancy
endangers a woman's life. Requiring Medicaid managed care organizations that participate in the program to provide such coverage could constitute “discrimination" against those that refuse to provide or refer patients elsewhere for these
services. • It would interfere with states' ability to enforce their own laws on abor
tion. H.R. 4691 could prevent those states that cover medically necessary abortions beyond those mandated by the Hyde Amendment (whether as a result of state constitutional rulings or by virtue of state laws) from effectuating that coverage by contracting only with Medicaid managed care organizations that agree to provide or refer for abortion services. Currently, more than fifteen states require such coverage. H.R. 4691 would interfere with these states' ability to enforce their own laws and constitutional decisions and to manage and
ensure delivery of mandated services within their own Medicaid programs. • It would disrupt the enforcement of state health care regulations. H.R. 4691
would thwart the enforcement of state and local laws that require entities certified or licensed by the state to address the full range of health care needs in the communities they serve. A state might be prevented, for example, from denying a “certificate of need” (a state-issued document that is similar to a permit and that is often required before two hospitals can merge) to a newly merged hospital that refused to provide even lifesaving abortions and thus left pregnant women in the community without help in medical emergencies. (Mergers between a religiously affiliated hospital and a secular hospital often raise this issue because some religiously affiliated hospitals insist that the newly
merged entity apply religious doctrine in the provision of health services.) • It could immunize a health care entity's refusal to provide emergency
contraception, even to victims of rape. Because it does not define the term "abortion," H.R. 4691 could permit health care entities to refuse to provide emergency contraception, even to victims of rape. Although emergency contraception is merely a high dose of ordinary birth control pills and does not interrupt an established pregnancy, some religiously affiliated providers define emergency contraception as an “abortifacient.” Health care entities that subscribe to this view could use this bill to attempt to shield themselves from repercussions for refusing to comply with state laws that require hospitals to provide emergency contraception (or referrals for emergency contraception) to rape survivors who present in their emergency rooms.
CONCLUSION Even interpreting it conservatively, H.R. 4691 is a potentially sweeping federal exemption from current legal and regulatory requirements that govern access to
health services. In fact, it amounts to a broad non-compliance permit for religiously affiliated entities that serve the general public and receive public funds, but nevertheless want exemptions from the general laws that govern other health care entities. The ACLU therefore opposes this dangerous measure and respectfully urges this Subcommittee to reject it.
ENDNOTES Ms. Smith's name has been changed to protect her identity. 2 Neb. Rev. Stat. 8 28-237. 3410 U.S. 113 (1973). 4 See Taylor v. St. Vincent's Hosp., 523 F.2d 75, 76 (9th Cir. 1975). 542 U.S.C. $ 300a-7. * Id. $ 300a-7(c), (d), (e), 742 U.S.C. $ 238n. 8 42 U.S.C. $ 1396u-2(aX5)(D). 942 U.S.C. $ 1396u-2(b)(3). 10 Omnibus Consolidated and Emergency Supplemental Appropriations Act, Pub. L. No. 105277, $ 656, 112 Stat. 2681 (1998).
Employment Div. v. Smith, 494 U.S. 872 (1990) (holding that the Free Exercise Clause does not entitle religious objectors to exemptions from neutral, generally applicable laws); Corp: of the Presiding Bishop v. Amos, 483 U.S. 327 (1987) (holding that the Establishment Clause does not prohibit an exemption from Title VII of the Civil Rights Act that permits religious organizations to discriminate on the basis of religion in employment decisions.).
12 109 Cal. Rptr. 2d 176 (Ct. App.), petition for review granted, 31 P.3d 1271 (Cal. 2001).
15 Id. at 330. The Accreditation Council for Graduate Medical Education (ACGME) has since made clear that ob/gyn residency programs must offer clinical training in contraception and sterilization. In addition, the current standards require clinical training in abortion, unless a residency program has a “religious, moral, or legal restriction," in which case the program must nevertheless (1) ensure that residents receive training in how to manage abortion complications; (2) permit residents to receive abortion training elsewhere; and (3) publicize the restriction to all residency applicants. Program Requirements for Residency Education in Obstetrics & Gynecology $ V.A.2.d., e. (ACGME, effective Sept. 1999), http://www.acgme.org/req/220pr999.asp. As discussed above, however, the Coats Amendment requires that residency programs be treated as accredited—for licensing, funding, and other governmental purposes-notwithstanding any refusal to offer, refer for, or arrange for abortion training. 42 U.S.C. $ 238n.
16 42 U.S.C. $ 300a-7(c), (d), (e).
17 President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Making Health Care Decisions: A Report on the Ethical and Legal Implications of Informed Consent in the Patient-Practitioner Relationship 76 (1982); see also Principles of Medical Ethics of the American Medical Association, Policy E-8.08 Informed Consent (issued 1981), available at http://www.ama-assn.org (using policy finder); American College of Obstetricians & Gynecologists Committee Opinion No. 108, Ethical Dimensions of Informed Consent 7-8 (1992).
18 Shelton v. Univ. of Med. & Dentistry, 223 F.3d 220 (3d Cir. 2000). 19 Lois Uttley & Ronnie Pawelko, MergerWatch Project,
Educ. Fund of Family Planning Advocates of N.Y.S., No Strings Attached: Public Funding of Religiously-Sponsored Hospitals in the United States 15 (2002).
20 See, e.g., Gellington v. Christian Methodist Episcopal Church, 203 F.3d 1299 (11th Cir. 2000).
21 Catholic Charities, 109 Cal. Rptr. 2d at 189.
STATEMENT OF LYNN WARDLE Mr. WARDLE. Thank you. Mr. Chairman and distinguished members of this subcommittee, I am honored to be invited to present testimony today. I have studied and written about abortion for over two decades, and I have seen the transformation of the debate. Initially, advocates of permissive abortion desired to give women the private choice to select abortion. They asserted that they did not intend to force anyone to do anything, but they just sought to repeal laws that prohibited one option available to them that they thought should be available. However, once that goal was achieved by judicial decree, it was not long before they demanded that public funds be available to pay for those abortions and that public hospitals should be forced to perform abortions. Fortunately, although