Published: May 26, 2013
As the nation’s leading Roman Catholic bishop, Cardinal Timothy
M. Dolan of New York has been spearheading the fight against a
provision of the new health care law that requires employers,
including some that are religiously affiliated, to cover birth control in employee health plans.
But even as Cardinal Dolan insists that requiring some religiously affiliated employers to pay for contraception services would be an unprecedented, and intolerable, government intrusion on religious liberty, the
archdiocese he heads has quietly been paying for such coverage, albeit
reluctantly and indirectly, for thousands of its unionized employees for over a
decade.
The Archdiocese of New York has previously acknowledgedthat some local
Catholic institutions offer health insurance plans that include contraceptive
drugs to comply with state law; now, it is also acknowledging that the
archdiocese’s own money is used to pay for a union health plan that covers
contraception and even abortion for workers at its affiliated nursing homes and clinics.
“We provide the services under protest,” said Joseph Zwilling, a
spokesman for the Archdiocese of New York.
As president of the United States Council of Catholic Bishops,
Cardinal Dolan has consistently rejected similar arm’s-length compromises
offered by the Obama administration, which has agreed to exempt many religious
institutions from the provision, but not religiously affiliated employers like
schools and hospitals that employ people of many faiths and do not exist
primarily to inculcate religious values.
In February, the bishops opposed a proposal that would have
allowed employees of those nonexempt religious institutions to receive
contraceptive coverage through policies paid for directly by insurance
companies. The New York Archdiocese is also suing the federal government to
stop the mandate.
“There remains the possibility that ministries may yet be forced
to fund and facilitate such morally illicit activities,” Cardinal Dolan said at
the time.
The archdiocese agreed to cover its own health workers long before
Cardinal Dolan became archbishop of New York, and even today insists that it
has no choice. As a result, about 3,000 full-time workers at ArchCare,
also known as the Catholic Health Care System, receive coverage for
contraception and voluntary pregnancy termination through their
membership in 1199 SEIU United Healthcare Workers East, a powerful health care
workers union, according to Dave Bates, a spokesman for the union.
ArchCare, which operates seven nursing homes and a variety of
other health facilities, gives its 1199 union employees the same coverage they
would get at over 100 other nonprofit hospitals or nursing homes in the New
York area, because ArchCare voluntarily belongs to the League of Voluntary
Hospitals and Homes, a multi-employer organization that negotiates
with the union every few years for a joint labor contract.
Bruce McIver, the president of the league since 1991, said he
recalled that some Catholic organizations had expressed concern about paying
for the contraception benefits in the mid- to late 1990s. But in recent years,
as the number of Catholic hospitals in the city dwindled, “they just kind of
stopped, from my perspective, paying attention to this issue,” he said.
“Eventually, the Catholics just said, you know, we are going to
ignore the issue and pay into the fund and people are going to make their own
choices about contraception and so forth,” Mr. McIver said.
During union negotiations, “I don’t remember it coming up in the
last dozen years or so, ever,” he said. “In a place like New York, their
employees, not all of whom are Catholic, would react pretty badly.”
ArchCare, like other employers in the league, does not directly
pay for the coverage. Instead, employers contribute to the union’s National
Benefits Fund, in amounts equal to roughly 25 percent of each employee’s base
pay; that money is used to pay for the insurance coverage. It is not known how
many ArchCare workers actually use the disputed services.
Mr. Zwilling, the spokesman for the New York archdiocese, said
that Cardinal John J. O’Connor and the archdiocese “objected to these services’
being included in the National Benefit Fund’s health insurance plan” when
joining the league in the 1990s. But the cardinal then decided “there was no
other option if the Catholic Church was to continue to provide health care to
these union-affiliated employees in the city of New York,” Mr. Zwilling said.
Since 2002, other New York Catholic agencies with standard
commercial insurance have been subject to a state mandate to provide
contraceptive services, Mr. Zwilling added. Fordham University, for example,
covers contraception for employees and students. But rather than nullify the
issue, “in fact, these rare exceptional concessions have made the bishops even
more aware of the gravity of the situation and lead to the attempt to remedy
the matter on a national level,” he said.
In
theory, ArchCare could have negotiated independently with the union to avoid
providing its 1199 employees — health support staff members ranging from
physician assistants to orderlies — abortion and contraception coverage. The
archdiocese avoids providing those services for 1,100 other ArchCare employees,
for example, by insuring them through a special self-insurance plan that is
exempt from the mandate. But in reality, “it would be very difficult,” Mr.
McIver said. “It’s hard to go backwards.”
Similar skepticism was expressed by Scott LaRue, the chief
executive of ArchCare. “It doesn’t matter whether you join the league or you
don’t join; the league determines the contract, and then the union goes and
forces the same arrangement on the other homes whether you are in the league or
not,” he said.
Religious employers nationally have often grudgingly covered
contraception, whether to comply with state health care mandates or because
they simply did not realize they were doing so, said Stephen S. Schneck,
director of the Institute for Policy Research and Catholic Studies at the
Catholic University of America, in Washington.
“It’s surprising, but a good number of employers don’t really get
into the weeds that much with their insurance plans to know” if they are
covering contraception and sterilization, Mr. Schneck said.
Even among the more than two dozen for-profit companies suing the
Health and Human Services Department over the mandate, some were paying for
contraception and other objectionable coverage until recently. They included
the American Manufacturing Corporation, a mud pumping company in Minnesota
whose owner, Gregory Hall, a Catholic deacon, played a pivotal role in helping
to free trapped Chilean miners in 2010.
Mr. Hall’s lawyer, Tom Matthews, said his client realized that he
was covering contraception for his employees only in December, when reviewing
what the government would require in his next health care contract. More
recently, he was “very upset” to find the plan had also been covering abortion,
Mr. Matthews said. A federal court granted the company an injunction that will
allow it to stop the coverage until the courts settle the matter.
Another company, Korte & Luitjohan Contractors in Illinois,
found out in August that its insurance was covering abortion, contraception and
sterilization “as a mistake,” according to Edward L. White, senior counsel at
the American Center for Law and Justice in Washington. Korte is one of seven
companies represented by the American Center in a challenge to the mandate.
Federal courts have dismissed most of the roughly 30 lawsuits already filed against the mandate by
Catholic dioceses and other nonprofit corporations, because the government is
not enforcing the mandate for religiously affiliated nonprofits until this
August. The case brought by the New York Archdiocese, however, is moving
forward. The mandate already applies to for-profit companies, but many of those
suing have been granted reprieves until the end of their legal cases.
In courtrooms, government lawyers have pointed out to judges that
some of the employers challenging the mandate have already been providing
similar coverage. But Mark Rienzi, senior counsel at Becket Fund for Religious
Liberty, which is also representing companies suing against the mandate, said
that so far “the courts have not bought the argument that, aha, you must not
really mean it if you haven’t caught it before now.”
Sarah Lipton-Lubet, an analyst at the American Civil Liberties
Union, which supports the contraception mandate, sees the matter differently.
“I can’t
begin to understand the argument that coverage that has been part of the plan
for however many years is suddenly anathema,” she said.
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