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woman must certainly have a fundamental right to choose whether or not to terminate a pregnancy."
Of course, Valley Hospital challenged the decision, and it went before the Alaska Supreme Court. This five member court is one of a handful of state supreme courts to rule that state funds must be used for elective abortions despite the contrary decision of the state legislature. One member, Justice Bryner, declared that “pregnancy is a disease” during oral arguments on the funding issue. It was no surprise that the court upheld Judge Fabe's original decision. The Alaska Supreme Court held that Valley Hospital was "quasi-public” because of its receipt of public monies. In addition, the court struck down a state law protecting hospitals that refuse to participate in abortions, denying the right of our board to exercise its rights of moral conscience. The court even suggested that it would not respect the religious beliefs of those who decline involvement in abortion, saying, “recognizing such a policy as 'compelling could violate the Establishment Clause of the First Amendment." Valley Hospital Ass'n. v. Mat-Su Coalition for Choice, 948 P.2d 963 (Alaska 1997).
In response, the legislature sought to reverse the decision by constitutional amendment, which requires a two-thirds vote of our legislators. Sadly, the amendment failed to garner that two-thirds majority by just one vote.
This court decision potentially places all hospitals in our state in a “Catch-22” situation. If you are a non-religious hospital you have no First Amendment claim of religious freedom, so you must provide abortions. If you are a religious hospital with a "free exercise” claim, respect for your right of conscience may be seen as showing favoritism to religion, so you may still have to provide abortions.
At a time when he was not a member of any religion, former abortionist Bernard Nathanson once said: “It is clear that permissive abortion is purposeful destruction of what is undeniably human life. It is an impermissible act of deadly violence.” For those of us who share this view—that abortion is a form of violence, not a form of health care—being required to provide and support it is a grave injustice.
I ask for myself and my community, and for any other hospital or health care provider that does not want to be forced to be involved in killing innocent human life. Please pass Congressman Bilirakis's bill, the Abortion Non-Discrimination Act (H.R. 4691). We, too, have a right to choose a right to choose not to be involved in destroying life. Thank
for considering my views. Mr. BILIRAKIS. Thank you, Ms. Vosburgh. Ms. Weiss, please proceed. Make sure that mike is on.
STATEMENT OF CATHERINE WEISS Ms. WEISS. Mr. Chairman and members of the subcommittee, good afternoon and thank you for inviting me to testify today. I am here, as you know, on behalf of the American Civil Liberties Union. Because of its dual long-term commitments to religious liberty and reproductive freedom, the ACLU has a profound interest in the ongoing debate about religious exemptions in the reproductive health context. I am going to begin by telling you about the case that brought the ACLU into this debate, then I will outline the framework we use for analyzing these exemptions. And I will end with a brief discussion of H.R. 4691.
First the story. In 1994, I got a call from a very distraught doctor in Nebraska. He told me that a 19-year-old woman had been admitted through the emergency room of the hospital where he practiced. She had a blood clot in her lung. Tests revealed that she was 10 weeks pregnant. The clotting disorder was a rare complication of the pregnancy. Her treating physicians told her that she had two alternatives. She could stay in the hospital for the remaining 642 months of her pregnancy, taking medications and undergoing surgery to reduce her risk of death or she could have first trimester abortion. She wanted to go home to her toddler so she decided to have an abortion. Four doctors certified that it was a life-saving procedure for her. On the morning surgery was scheduled, however, the hospital's lawyer appeared in the operating room brandishing a State law that said that no hospital could be required to permit an abortion on its premises. The procedure was canceled. Ten days of dangerous delay followed. Although moving the patient greatly increased her medical risks, she was ultimately transferred 20 miles by ambulance to the office of her physician. He performed the abortion safely. Although his patient had survived the unconscionable risks to which she had been suggested, the doctor wanted to know whether what the hospital had done was legal. That is one of the questions presented here today.
I move now to the framework the ACLU has developed for analyzing religious exemptions. This framework is meant to balance protection for religious liberty with protection for other critical personal rights. We have identified two main factors. First, would refusal harm the health or other critical personal interests of people who do not share the beliefs that motivate the refusal? The more such burdens fall on third parties, the less acceptable any claimed right to refuse. Second, is the objector sectarian institution engaged in religious practices or is instead an entity, whether religiously affiliated or not, operating in a public, secular setting? The more public and secular the setting, the less acceptable an institution's claimed right to refuse.
H.R. 4691 fails this test. The burdens imposed by the bill would fall primarily on patients of all faiths and no faith seeking health care in public and secular settings. Consider, for example, the hypothetical case of a low-income woman in Washington State who has just been raped. The police take her to a local emergency room in a large, urban catholic hospital. State law in Washington requires hospitals to offer all rape victims emergency contraception so that they can prevent a pregnancy resulting from the assault. The hospital, however, believes that emergency contraception is an abortifacient, so relying on H.R. 4691 the hospital refuses to provide or even inform the patient about emergency contraception. She leaves not knowing that this drug exists.
Three weeks later, the woman's pregnancy test comes back positive. She is devastated and decides to have an abortion. She calls her Medicaid managed care organization. As you know, State and Federal law entitle rape victims to Medicaid coverage for abortion. Relying on H.R. 4691, however, the managed care organization tells the patient that it does not provide abortions and refuses to give her any further information on the subject. She assumes that her abortion isn't covered and starts the race against time of trying to raise the money on her own as the pregnancy advances.
This account provides just one example of how H.R. 4691 could allow hospitals, health plans and other institutions to shirk critical legal obligations to patients, even patients in publicly funded health care programs. But surely health care institutions that employ the general public and serve the general public and even receive public funds should comply with public health laws. The ACLU urges the subcommittee to reject this dangerous bill. Thank you.
[The prepared statement of Catherine Weiss follows:]
PREPARED STATEMENT OF CATHERINE WEISS, DIRECTOR, AMERICAN CIVIL LIBERTIES
UNION, REPRODUCTIVE FREEDOM PROJECT 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.
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, 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 bloodthinners 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.” 2 The procedure was canceled and ten days of dangerous delay followed.
Šmith 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 bloodthinners 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.3 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. 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.5 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..
In 1996, Congress adopted the Coats Amendment. 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. 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.?
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. 10 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 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 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. 11 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, 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 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.” 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 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