ARTICLES
January 2004 ARTICLES
Contents © 2004
by Jim Holman.
All rights reserved.
It Would Be A Terrible Loss
Catholic Charities Before the California Supreme Court
BY MARIA KENNEDY
On December 2, the California supreme court heard oral arguments in Catholic Charities v. California Department of Managed Health Care. The issue before the court involves whether or not Catholic hospitals, universities, and charitable groups are subject to a California law, dubbed the Women's Contraceptive Equity Act, that requires employers, including religious institutions, to provide insurance coverage that includes artificial birth control. Catholic Charities maintains that providing coverage for artificial birth control violates its constitutional right to remain free from government intrusion in the exercise of its religious beliefs.
Proponents of mandated contraceptive coverage for employees began their campaign in the 1993-1994 legislative session. In spite of several setbacks, proponents finally passed two bills during the 1997-1998 session. Then-governor Pete Wilson vetoed the bills, citing the lack of a conscience clause for the Catholic Church's concerns in the legislation. Not to be deterred, proponents continued their campaign and ultimately prevailed during the 1999-2000 session. Although the California Conference of Catholic Bishops, which opposed the bills, asked for language that would include a conscience clause, its concerns were ignored, and the two bills were passed as the Women's Contraceptive Equity Act and signed into law by Governor Gray Davis on September 28, 1999. The act went into effect on January 1, 2000.
The Women's Contraceptive Equity Act obligates employers to provide insurance coverage that includes artificial birth control if the employer includes prescription drugs in its health plan. Though exempting religious employers, the act so narrowly defines the term "religious employer" as to exclude religious hospitals and universities; only those religious entities which solely employ or offer services to members of their own religion are exempt under the law. Supporters of the bill argued that the legislation was necessary to promote "gender equity" and create greater access to contraceptives.
Catholic Charities of Sacramento filed a lawsuit in Sacramento Superior Court in July 2000. The trial judge ruled against Catholic Charities, which then appealed to the California court of appeals. In a decision published in July 2001, the court of appeals upheld the trial court's decision, citing that Catholic Charities would unlikely prevail in the litigation. In September 2001, the California Supreme Court took the case under consideration.
In the brief for Catholic Charities, Attorney Jim Sweeney points out a 1999 study done by Price Waterhouse, which concluded saying "coverage of reversible forms of contraceptives is available to approximately 90% of insured Californians." Price Waterhouse concluded that the legislation would "codify existing practices" -- that is, legislate a condition that already exists. The brief also notes that at a June 30, 1999 state senate insurance committee hearing on the bills, Kathy Kneer of Planned Parenthood told the committee that the legislation was intended "close the gap in insurance coverage for contraceptive and prescription drug benefit plans. Our concern with creating an exemption [for religious employers] is that that defeats the original purpose of the bill."
In arguing its case before the California Supreme Court, Catholic Charities noted that it is not concerned with the public policy issue of forcing employers to provide insurance coverage for artificial birth control but is concerned with the issue of religious freedom. Catholic Charities argued that what is at issue is the freedom to "remain faithful to their religious beliefs in the conduct of their civil affairs."
In the brief for Catholic Charities, Sweeny carefully documented how the legislation was clearly drafted to force Catholic institutions to provide coverage for artificial birth control and thus "close the Catholic Gap." "For the authors and sponsors, Catholic religious institutional employers were viewed as the problem -- a problem to be 'dealt with' by imposing the contraceptive mandate upon them," says Sweeny's brief. "If such an exemption were needed for constitutional or political reasons, the authors and sponsors posited that the exemption must be deliberately fashioned to exclude Catholic religious institutions, especially Catholic hospitals, universities and social service agencies. Indeed if closing the Catholic gap were not the problem, then 'granting an exemption' to Catholic employers could hardly be said to 'defeat the original purpose of the bill.'"
Sweeny's brief also notes the hostility that the senate bill's sponsor, Jackie Speier (D-San Mateo), showed towards the Catholic Church during the time that the bill was being shepherded through the legislature. According to the brief, Speier and the bill's advocates implied that because the majority of Catholics do not follow the Church's teaching on artificial birth control, Catholic Charities was not entitled to any legislative relief in this area. Sweeny quotes Speier as saying, "let me point out that 59 per cent of all Catholic women of childbearing age practice contraception. 88 per cent of Catholics believe in a New York Times poll that someone who practices artificial birth control can still be a good Catholic. I agree with that. I think it's time to do the right thing."
Some legal observers agree that the law unfairly targets the Catholic Church. Professor Douglas Kmiec, a constitutional scholar at Pepperdine University School of Law, said, "there is a good deal of evidence that Catholic belief was specifically targeted by this legislation. As a matter of constitutional examination, that makes the statute highly suspect. When exemptions from regulations are drafted, the rule of law demands that they not be gerrymandered in a way that anoints the state to assess the relative importance of religious belief. Catholic Charities does not seek to be a law unto itself. It merely asks that it not suffer the regulatory lash for refusing to fund contraceptive practices that separate the unitive and procreative aspects of physical intimacy. Whether or not the state agrees with this longstanding teaching of the Church, the state has no constitutional license to write laws that specifically deny all but a narrow subset of believers the right to subscribe to it."
Similarly, some who are not Catholic are concerned with the position the Catholic Church is put into with this legislation. "I personally don't agree with the Catholic Church's stand on contraception," said Assemblyman Tim Leslie (R-Tahoe City). "But I absolutely support their organizations' right to free exercise of their religion. Catholic schools and charities do so much that is good for our communities. It would be a terrible loss if we force them to choose between serving the needy and the religious convictions that have inspired them to serve in the first place."
The hearing, which was broadcast on the California Channel, was held in San Jose. There was a lively exchange between Sweeny, California Deputy Attorney General Timothy Muscat, and the justices. Sweeny told the justices that providing coverage for birth control was "morally unacceptable" to Catholic Charities. Muscat countered and told the justices that the law requiring contraceptive coverage remedied years of discrimination against women. According to press accounts, the justices asked both sides numerous questions, often serving as the devil's advocate. With regards to Muscat's allegation that denying women coverage for artificial birth control was tantamount to discrimination, Chief Justice Ronald George asked him if refusing to provide men with Viagra would constitute discrimination. "It probably doesn't fall within your health care need," Muscat replied to the chief justice.
Although the court proceeding provided some light moments, there was no clear indication of how the justices will ultimately rule. Kevin Eckerly, of Eckerly Associates, who handles media for Catholic Charities, told this reporter that he thought the hearing went well for Catholic Charities.
Richard Steffen, press secretary to Senator Jackie Speier, did not return a call for comment.