The Questions No One is Asking about the Kermit Gosnell Case…

By Carol E.Tracy and Kate Michelman

With Kermit Gosnell’s criminal trial underway in Philadelphia, public outrage at the physician accused of murdering one woman and seven infants increases with each grisly new piece of evidence.

But the Gosnell trial raises several inescapable questions:  How could this happen? In particular, how, in a state that has led the nation in imposing restrictions on abortion, could such atrocities go undetected?  Just as puzzling is why the numerous complaints against him were ignored.  The answer is simple:  throughout the 1970s and 1980s, when abortion policy was established, the Commonwealth of Pennsylvania’s primary goal was to overturn Roe v. Wade and, barring that, impose as many barriers as possible to limit access to abortion.  By and large, our policymakers have never viewed abortion as a medical procedure – instead placing it under the Pennsylvania Crimes Code – and therefore have not nurtured a system of abortion care that is woman-focused, readily accessible, and responsive to their medical needs.  The Commonwealth’s focus has been on denying access, not protecting the health and safety of women who need this medical care. If the charges against Gosnell prove true, Gosnell was an outlaw who repeatedly violated numerous laws and should have been shut down years ago, but the state did not hold him accountable to its own laws and policies.

So why did women go to his clinic? Why not choose a legitimate, reputable provider of abortion care? During a Senate Public Health and Welfare Committee hearing on proposed abortion regulation bills, Tyhisha Hudson, a woman who had obtained an abortion at Gosnell’s clinic, was asked why she went to him.  She testified that women in her neighborhood knew that Gosnell was the man you saw for the cheapest abortion.

Another Gosnell patient, Davida Johnson, noted in an Associated Press article that she intended to go to Planned Parenthood for an abortion procedure, but was scared away by anti-abortion protesters picketing outside the clinic. An acquaintance suggested she go to Gosnell, where protesters (ironically) were not an issue.

Evidence suggests that a number of factors influenced a woman’s decision to seek care at Gosnell’s clinic: Medicaid’s refusal to provide insurance coverage for most abortions; the scarcity of abortion providers in Pennsylvania (and across the nation); the fear of violence perpetrated by protestors at clinics, and the right-wing culture that has so stigmatized abortion that many think it is still illegal 40 years after Roe v. Wade.

It is critically important that the women of Pennsylvania know that abortion is legal and is a safe medical procedure.  As set forth in the Gosnell Grand Jury Indictment, legitimate providers, like Planned Parenthood and members of the National Abortion Federation, follow the law and standard medical procedures.

Unfortunately, politicians in Congress and in Harrisburg continue to make it more and more burdensome for women to get safe abortions.  Since 1976, Congress has annually re-authorized the Hyde Amendment, which bans federal Medicaid coverage of abortion care except in cases of rape, incest, or if the pregnant woman’s life is endangered. Pennsylvania law likewise restricts any state Medicaid money from funding the procedure except in those three rare circumstances (rape, incest, and threat to the woman’s life), so low-income Pennsylvania women are as a rule responsible for covering the entire cost of an abortion out-of-pocket. This cost equals or exceeds an entire month of TANF assistance benefits for most families.

Bills currently pending before the Pennsylvania legislature would ban coverage of abortion in health insurance policies sold in the health care exchange under the Affordable Care Act. These extreme measures would ban abortion coverage even when the woman’s health is endangered if she is forced to continue a dangerous pregnancy, and even when the coverage would be separately paid for with the woman’s own money.

Reputable, careful providers of high quality abortion care are under attack. As a result of an orchestrated campaign of harassment, intimidation and violence against individual doctors and freestanding women’s clinics by domestic terrorist organizations like the Army of God and Operation Rescue, the number of abortion providers in the United States declined 38 percent between 1982 and 2005. In Pennsylvania, there is not a single freestanding abortion provider in the hundreds of miles between Pittsburgh and Harrisburg.

To compound the provider shortage problem, the Pennsylvania legislature passed a new law in 2011 modeled after a bill on the wish list of the National Right To Life Committee:  mandating that the remaining handful of abortion providers come into compliance with volumes of costly regulations designed for ambulatory surgical facilities where much more complex surgeries take place. Today, there are just 13 freestanding providers of surgical abortion care in Pennsylvania, down from 22 two years ago.

Pennsylvania is not alone in developing strategies to regulate abortion care right out of existence. In fact, state legislatures have enacted 135 abortion restrictions in the last two years, according to the Guttmacher Institute.

For readers who feel this doesn’t apply to them, mark our words, it does, because it is likely that you know someone who has had an abortion. One in three women will have an abortion by the time she is 45. Between 30 and 40 million women have had abortions since Roe v. Wade was decided in 1973.

History tells us that whether abortion is legal or illegal, women will have abortions – the only difference is whether women live or die.  As in the pre-Roe days, women with resources can usually find quality care; but those without resources will often seek out the cheapest possible care. The long-term impact of burdening and stigmatizing abortion care could be that the most vulnerable women will once again have to risk their health and lives to get what should be a completely safe and common medical procedure.

Kate Michelman is co-chair of WomenVote PA, an initiative of the Women’s Law Project, and President Emeritus of NARAL Pro-Choice America.

Carol Tracy is co-chair of WomenVote PA, an initiative of the Women’s Law Project, and Executive Director of the Women’s Law Project.

Roe v. Wade 40 Years Later: How Far Have We Come?*

By Kate Michelman and Carol Tracy

January 22nd marks the fortieth anniversary of landmark Supreme Court decision Roe v. Wade.

Roe v. Wade was a historic milestone for women in America, because this right to control our capacity to reproduce – including our right to use contraception – significantly enhances our ability to participate fully in society. It helps ensure our personal privacy, our dignity, and our health.

Roe v. Wade promised to protect our ability to make decisions about our bodies without unwarranted interference, and recognized the essential importance of equality and freedom for women in our society.

On this fortieth anniversary, it is appropriate to ask if the promise of Roe v. Wade has been fulfilled.  Has women’s liberty and equality progressed as far as we hoped it would since January 22, 1973?

Clearly there have been some great strides forward. During the 2012 elections, women turned out in droves to make their voices heard. In almost every instance where women’s reproductive rights were challenged, freedom of choice prevailed. Earlier this month, a record number of women were sworn into the 113th Congress. Indeed, some may view the successes of 2012 as a sign of continually emerging equality and solid and lasting protection against discrimination and political harassment. Sadly, they would be wrong.

In 2012, forty-two states and the District of Columbia enacted 122 reproductive health-related measures. The primary purpose of at least 43 of those was to limit access to abortion.  This was in addition to the 92 abortion restrictions enacted in 2011. Twenty states restricted abortion coverage through the state health insurance exchanges mandated by the Affordable Health Care Act. Crucial family planning funds were slashed from many state budgets.  Funding for reproductive health services in non-state operated clinics such as Planned Parenthood came under attack at both the state and federal levels. Currently, contraception can be barred from employer-based insurance coverage in eight states, and abstinence-only education remains the norm in the majority of our country.

This fight against contraception reveals the true hypocrisy of the anti-abortion groups: their concern isn’t protecting the unborn fetus; it’s about controlling which choices women are, and are not, allowed to make.

Forty years later, women still do not have equal pay in the workplace and are discriminated against due to pregnancy and familial responsibilities.

And despite the record-breaking number of women in Congress this year, and despite women voting at higher rates than men, women remain vastly underrepresented in the political landscape, let alone the corporate world. Those who do beat the tremendous odds are subjected to double standards of behavior, gender-based rhetoric, and vicious vitriol directed at times towards their femininity rather than their capability.

Negative attitudes towards women do not end there. The continued occurrences and reactions to instances of rape and sexual assault are indicative of the negative attitudes towards women that permeate society today. The gang rape on a bus in India sparked a global furor. The rape in Steubenville, Ohio, our own backyard, sparked a similar wave of repudiation. However, the blaming, shaming, and judgment directed toward the victims of these horrific crimes remains a key component of the dialogue surrounding even these high-profile instances of sexual assault. While the sheer volume of sexual assault and rape speaks to the prevalence of violent and negative attitudes towards women, the victim-blaming and judgment that occurs paints an even more disturbing picture revealing how subversive and long-lasting these negative perspectives of women are.

Technically, the core protections guaranteed by Roe v. Wade remain intact. However, those protections are eroding due to the constant onslaught by radical conservatives bent on undermining the rights of women. The goal of Roe v. Wade was to ensure a woman’s right to control the most intimate aspect of her life. Without this right, simply put, women are unable to participate equally with men in the social, political and economic life of the nation.

The road ahead remains difficult. Our health, financial security, and personal safety are constantly challenged, compromised, and limited. So while we reflect on these past forty years, let us acknowledge and celebrate the extraordinary steps we have taken to move our country towards equality.

But let us also understand that hard work and vigilance is needed now, more than ever, in the fight for women’s equality and justice.  The goal of Roe v. Wade has not been achieved, but on this anniversary it is essential that it also not be forgotten.

Kate Michelman is president emerita of NARAL Pro-Choice America, author of “With Liberty and Justice for All: A Life Spent Protecting the Right to Choose,” and co-chair of WomenVote PA.

Carol E. Tracy is Executive Director of the Women’s Law Project and co-chair of WomenVote PA, an initiative of the Women’s Law Project.

*NOTE: This post so far has appeared in the following newspapers and/or online: the Huffington Post, the Main Line News, the Harrisburg Patriot-News, and USA Today.

Roe v. Wade: The Fortieth Anniversary

WLP Staff Request:

Next week, we will recognize the 40th anniversary of Roe v. Wade, the monumental decision in which the United States Supreme Court held that the 14th Amendment of the U.S. Constitution protects a woman’s right to terminate a pregnancy. Over these last four decades, the courts and our legislatures have chipped away at Roe, and campaigns of violence and harassment have targeted providers of abortion services.

We must do more to protect Roe and the people whose commitment to providing reproductive health care services allows women to exercise their rights under the U.S. Constitution. To bring attention to the importance of Roe v. Wade, the Women’s Law Project will engage in several activities and events next week, including:

(1) Twitter Initiative: #protectRoe4me – Using the hashtag #protectRoe4me, learn more about Roe’s significance from WLP staff and friends on Twitter and join in the discussion with your own reasons why we must protect this important right. Stay tuned for tweets on January 22, 2013, forty years to the day the Supreme Court decided Roe.

(2) Event: “Roe at 40—Providers Under Attack” - WLP is co-hosting an event with the Women’s Medical Fund on January 24th from 5:30 to 7:00 PM, when David S. Cohen, former WLP staff attorney and currently Associate Professor of Law at Drexel University’s Earle Mack School of Law and Krysten Connon (Drexel School of Law, Class of 2012) will present their research on the targeted harassment of abortion providers. Click here to register. Proceeds will support the Women’s Medical Fund, which provides financial assistance to low income women in need of abortion services.

Join in these opportunities to learn and discuss why Roe v. Wade is vital to the health and well-being of women and families across the United States and how you can help stop the pernicious attacks on women’s rights to medical treatment.

Women’s rights fight has moved to state level

Op-Ed  by Kate Michelman and Carol Tracy, appeared in the Philadelphia Inquirer, Sunday, December 9, 2012

That Mitt Romney was stunned by his defeat says much about his and others’ blindness to the divergent forces that carried Barack Obama to victory.

Imagine the bitter truths they must confront as the nature of the electorate becomes clear. The demographic realities that shaped the victory gave joy to those of us who have been ignored, belittled, and targeted by the conservative right. The very women, youth, people of color, gays and lesbians they assumed to be at the margins of national politics had their revenge. And, yes, we voted for “liberal” causes, obvious rights that have been denied for too long by the people who saw the country through out- of- date lenses.

Women, in particular, claimed our rights in bold print. More women turned out to vote than men. We were the largest deciding block in Obama’s victory (11 points over Romney). We left absolutely no doubt that we demand and deserve equal rights: equal pay, an end to pregnancy discrimination and sexual harassment, better family health care, paid leave, and broad access to contraception. At t he t op of t he list: Government should have no part in a woman’s reproductive decisions. Choice. It’s what most women demand for all women. An exit poll revealed that Americans believe abortion should be legal, 59 percent to 36 percent.

We had a great day. We won a solid and lasting protection against discrimination and political harassment. The national vote said it all.

Wrong.

The national vote, while worthy of high-fives all round, is hardly the end of our struggle for women’s rights. When conservatives lose a decisive battle at the federal level, they redouble their efforts at the state and local levels. And they’ve already made that clear in Ohio. A few days after the election the legislature defunded Planned Parenthood.

Facing vetoes from the White House and having no hope of stacking the Supreme Court, pro-life advocates will become much more aggressive at the state levels. Their targets: governors (30 Republicans), Republican-controlled legislatures, and local governments and institutions, including hospital boards, PTAs, even library boards. They are particularly focused on judicial appointments.

Women showed our force in checking the war on women. But don’t be deceived; the war goes on. Only the battlefields change.

Consider some of their recent legislative gains across the nation. Parental disclosure. Ultrasound tests. Showing a woman the X-rays of her unborn. Preprocedure lectures. Shutting down clinics by needlessly raising architectural standards. Forcing women farther afield to find a clinic. The list goes on.

Extreme conservatives can’t roll back Roe v. Wade, but they can and will try to crawl beneath the radar of broad publicity with seemingly innocuous ways to shame us, to deny our rights and our equality. They will count on our satisfaction in winning the White House to soon give way to apathy. To ignore their zeal is to risk forfeiting our hard-fought gains.

To exercise their power in ways that affect their lives and health, women must educate themselves about the values and policy views of decision-makers at every level. In many cases, the decisions that have the biggest impact are made by officials who often don’t attract much attention.

The country is served well by national organizations, but today the greater need is at the state and local levels — to make effective use of traditional and social media and grassroots efforts to profile candidates and encourage women to be aware, to choose, and to vote.

The best of these information groups include both Republicans and Democrats. They may or may not endorse candidates. Their objective is to keep vigilance over all manner of issues affecting women in that state, to share solid information, and to demand accountability from those who threaten our rights.

The only way women will continue our advance toward equality and privacy is to be aware — to take the time not just to understand the forces trying to take back our recent gains, but to make the time to fight back.

Kate Michelman is co-chair of WomenVote PA, president emerita of NARAL Pro-Choice America, and author of “With Liberty and Justice for All: A Life Spent Protecting the Right to Choose.”

Carol E. Tracy is co-chair of WomenVote PA, an initiative of the Women’s Law Project, and Executive Director of the Women’s Law Project.

 

Women have the power – why aren’t more of them using it?

Co-chairs of WomenVote PA, Carol Tracy, Executive Director of the Women’s Law Project, and Kate Michelman, President Emeritus of NARAL Pro-Choice America

AT A RECENT meeting a colleague of ours presented us with a challenge and posed the following questions:  Imagine if every woman of voting age participated in this upcoming presidential election? How would that determine the outcome of the election and the legislation and policy coming out of Washington?  What would happen – would anything really change?

The implications of such a reality are staggering.

For one, you would never hear any politician utter the phrase “legitimate rape” nor would a “transvaginal ultrasound” be prescribed by anyone other than a woman’s doctor; equal pay for equal work would be obvious; our reproductive rights would be championed by politicians, not jeopardized; support for efforts to end violence against women would be expanded; Social Security and Medicare would be stabilized and strengthened, not privatized and minimized.

Sadly, the question is hypothetical and the reality is quite the opposite – but we believe it doesn’t have to be. And we believe we can start by increasing the political participation of women here in Pennsylvania. In 2004, the Women’s Law Project, based in Philadelphia and Pittsburgh, began an initiative called WomenVote PA. The goal was and is straightforward: Increase the participation of women in the electoral process. We are focused on making WomenVote PA a resource for voters to learn more about legislative and policy initiatives and, equally important, a community both in the real world and the digital world, a place that uses education, collaboration and information-sharing to mobilize women voters.

The focus on the November election all but guarantees more Americans will vote this November than in any election since 2008 (assuming voter-ID requirements don’t deprive them of their right to vote). In 2008, 6 million Pennsylvanians voted in the presidential race and yet just two years later, 4 million voted in the U.S. Senate race – a staggering 2 million Pennsylvanians who voted in 2008 failed to do so in 2010. That is likely over 1 million women not voting in off-year elections – and each of these off-year elections determine who sits in the Pennsylvania General Assembly as well as the U.S. House of Representatives and Senate. Increasing that off-year participation number even slightly has real policy implications and real-world effects on women.

A reason behind WomenVote PA’s re-emergence has been what we will generously describe as politicians simply “not getting it.” Whether it is using the phrase “legitimate rape,” attempting to define rape only as “forcible rape,” blocking legislation in support of equal pay for equal work, rolling back our reproductive rights or limiting protections for victims of domestic and sexual violence, WomenVote PA is active in educating our network on the federal, state and local legislation that affects their lives. We believe in assisting our elected officials and policy makers in “getting it.”

And we have the data to back it up. WomenVote PA is an initiative of the Women’s Law Project, which has just published a remarkable study titled Through the Lens of Equality: Eliminating Sex Bias to Improve the Health of Pennsylvania’s Women, which will inform our education and outreach efforts. The study provides important research and data about how ongoing bias against women – in the home, in the workplace, in the classroom, and in the community – negatively impacts women’s health. We see it as a necessity that women’s voices are informed and are heard on issues that are essential to their health and well-being and that of their families.

The question “What if all women voted?” really does set the mind reeling – but in Pennsylvania WomenVote PA will focus our efforts on seeing what happens when more women vote. We believe much will.

This opinion piece appeared in many newspapers throughout Pennsylvania.  Please share this with your friends and remember to vote!

Rape is never legitimate; neither is the control of a uterus by anyone other than its owner.

By Carol E. Tracy, Executive Director, Women’s Law Project

Republican Todd Akin’s astounding remark — inaccurate and insensitive on SO many levels — that women’s bodies can prevent pregnancy in cases of “legitimate rape” is only the latest evidence of the twisted beliefs about rape, pregnancy, and abortion held by right-wing so-called pro-life legislators.

First, these truly are just beliefs.  They are accepted and asserted without factual basis, proof, or even examination by any rational thought process, much less any rudimentary knowledge of human biology.

Second, Akin’s comment goes far toward explaining attitudes held by him and his ilk.  This is interesting because there is a strong correlation between rape laws and laws restricting abortion.

Laws about rape and abortion originated with men for the benefit of men, collectively and personally.   Women had no say in these laws, and therefore had no say over their own bodies and powers of reproduction.   Motivated to assure male social dominance in all realms, the men behind these laws paid lip service to the need to protect women—as they continue to do now—but have no genuine concern for women, the lives they lead, the responsibilities they bear, and the decisions they need to make in their own interests.

Rape laws have an ignominious history.  They were developed to protect male property interests.  What property, you ask?   An unmarried woman’s virginity.   A woman’s virginity was considered the property of her father, which he then was permitted to give (sell?) to the man who would become her husband.  Giving a daughter in marriage was a transfer of inheritance rights and property.  Rape was the theft of that property.   It was not an assault crime; the victim’s bodily integrity was irrelevant.  The essential element was controlling female reproductive capacity to protect male property interests.

Rape was defined only as penal penetration of the vagina by force of an unmarried virgin.  Penetration of any other orifice by any other body part or object and penetration of a married woman or a man was not rape.   While vestiges of these archaic notions continue to exist in some of our state laws, massive law reform has largely criminalized behavior that involves unwanted penetration of body parts, without consent and without force, and regardless of gender.  Significantly, within the last year, the FBI updated the definition of rape in its Uniform Crime Reporting system to reflect the broader definition of rape reflected both in current state laws and in public understanding of this heinous crime.

Restrictive abortion laws in America were similarly born of men for men.  In colonial America and at the time that our constitution was written, abortion was perfectly legal until “quickening”, much to the chagrin of today’s strict constructionists.  This was true until the last third of the nineteenth century.   Restrictions developed out of two campaigns, both male-led and for male benefit.  At that time, women’s gynecological and obstetric care was provided by other women who were midwives and homeopathic healers.  In order to ensure their domination of the practice of medicine, doctors (almost entirely male at that time) began to push women out.  As part of this effort, the doctors claimed that abortion was unsafe.  While there was some truth to that—sanitary conditions in many kinds of medical procedures being haphazard and some concoctions sold to induce abortions being nothing less than poison – safety was not the doctors’ real motivation.

The second front was led by U.S. Postmaster General, Anthony Comstock, a fanatical latter-day puritan, whose personal religious convictions caused him to lead an anti-obscenity campaign against the transmission through the U.S. mail service of information about abortion and contraception.  The efforts by the doctors and Comstock led to the enactment of laws criminalizing both the performance of abortions and the dissemination of information about contraception and abortion.  In essence, men were controlling women by keeping them pregnant.

Todd Akin represents the ongoing drive to control women.  He is ignorant and dangerous, and he is not alone.  The 2012 Republican National Convention platform outlaws abortion entirely, without even mentioning rape.  Make no mistake about it, people who have archaic ideas about rape and restrictive views about abortion are in fact motivated to control women’s lives and health.

You can learn more about changes in the definition of Rape and WLP’s work here.

The Affordable Care Act Extends No-Cost Preventive Care to Women

Nikki Ditto, WLP Intern

Wednesday, August 1^st  is an important day for women’s health. After this date, all new insurance plans must cover certain women’s preventive health services, including contraceptives, without co-pays or deductibles. This represents an essential change in access to health care for women. Women, who have long been subjected to denial of access to insurance coverage for essential health services are more likely than men to forgo needed health care due to cost.  The number of women who can access these benefits will continue to expand as older plans lose their “grandfathered” status and become subject to the ACA’s preventive health services requirements.  For now, many college and university students will benefit if they receive health insurance through their schools, as those plans usually begin their health plan years around the start of the school year.  Other insurance policies that are renewed with substantially different content (usually on January 1^st) will also comply with the new law.

Women whose insurance plans fall under the new guidelines will now have access to a number of services that will “keep them healthier and…catch potentially serious conditions at an earlier, more treatable stage,” according to Secretary of Health and Human Services, Kathleen Sebelius. This includes annual well-woman visits, as well as screening and counseling for HPV, HIV, and STIs. Insurance policies will also have to cover testing for gestational diabetes, breastfeeding support, and domestic violence screening and counseling. Perhaps most significantly, women will also have access to birth control and other forms of contraception without a co-pay, though exceptions have been made for religious institutions and self-funded plans. These services add to the no-cost coverage that has already been implemented for pap smears and mammograms.

The Department of Health and Human Services reports that 20.4 million women have been and will be affected by this expansion in coverage. A startling 52% of women “report delaying needed medical care because of cost,” a number that will be decreased under the ACA. The Women’s Law Project (WLP) explained in its report Through the Lens of EQUALITY: Eliminating Sex Bias to Improve the Health of Pennsylvania’s Women that “lack of access to the full range of women’s health care has many adverse health consequences.”  Many women are unable to afford contraceptives, which range from $15 to more than $1,000 up front depending on the method.  The contraceptive coverage rule will increase women’s access to these methods of contraception, which will help them plan pregnancies and address other health concerns, such as polycystic ovarian syndrome, for which birth control pills are a common treatment.

Controversy continues over the provision requiring employer-provided insurance plans to cover birth control and other forms of contraception, including sterilization. As WLP blogged about today, twenty-four legal challenges are still pending in courts. The ACA already provides exceptions for religious institutions, and allows religiously affiliated businesses to push cost and administration on to the insurance companies. These accommodations, however, have not stopped the debate. WLP has blogged before about lawsuits that challenge the constitutionality of the provision on the basis of the First Amendment. As Terry Fromson, WLP’s Managing Attorney, explained, “the First Amendment does not give church leaders any right to impose their beliefs about contraception on women.”

Overall, the implementation of this provision of the ACA represents an important and necessary change to the way we view women and women’s health. Reproductive and sexual health must be seen as central to ensuring the health and well-being of all women, and not as a secondary concern. America will be healthier if women are given better access to the services necessary to care for themselves and their families, and increasing access to contraception is a step in the right direction.

Courts Come to Different Decisions on the ACA’s Provision Requiring Some Employers to Cover Contraception

Mary Pat Dwyer, WLP Law Intern

Two federal district court judges ruled recently on claims regarding the Affordable Care Act (ACA) provision which requires that employers providing health insurance to their employees cover reproductive health services, including birth control, emergency contraception, and other procedures.

On Tuesday, July 17, Judge Warren Urbom of the District of Nebraska dismissed a suit brought by several states, Catholic groups, and individual plaintiffs challenging the constitutionality of the provision.  The groups argued that the First Amendment’s protection of freedom of association gave them the right to deny their employees coverage for these essential services.  The states claimed that the groups and others like them would cease to provide insurance for their employees rather than comply with the law, which in turn would increase the number of Medicaid applicants and adversely affect state budgets.

Judge Urbom found that the plaintiffs did not have standing to pursue their claim that the mandate violated the first amendment for two reasons.  First, the federal government has delayed enforcement of the provision until August 2013.  Because of this, the groups are not facing any imminent requirement to comply with the law, and thus cannot show the “direct and immediate harm” that plaintiffs must show in order to have the courts consider their claims. Second, the states claims that they would face increases in Medicaid costs were based purely on “layers of conjecture,” and had no factual grounding. Furthermore, Judge Urbom pointed out that the Department of Health and Human Services is currently considering revising the definition of religious employers under the ACA. Because of the potential for revision, none of the plaintiffs could show that they would ever be impacted by the provision.

On Friday, July 27, Judge John Kane of the District of Colorado reached a drastically different conclusion when he granted an injunction prohibiting the federal government from enforcing the provision against Hercules Industries Inc., a private corporation. Judge Kane found that for the Catholic plaintiffs, who serve as co-owners and board of directors of a company that manufactures HVAC equipment, the obligation to comply with the law threatened their right to exercise their religious beliefs under the Religious Freedom Restoration Act (RFRA). Katherine Sebelius, Secretary of the Department of Health and Human Services, expressed disappointment with Judge Kane’s decision, but also stated that she is “confident that as this case moves through the courts, the policy that most health insurance plans cover contraception will be upheld.” Sebelius also reaffirmed the administration’s position that “health decisions should be between women and their doctors, not their employers.”

Twenty-four similar lawsuits claiming that the requirement violates the First Amendment are still pending in courts across the country. These suits undermine the security of women’s health care, and it is crucial that the courts recognize the grave importance of comprehensive health care access. As WLP highlighted in Through the Lens of Equality: Eliminating Sex Bias to Improve the Health of Pennsylvania’s Women, women who face restricted access to contraceptive care suffer serious health risks as a result. Women who are unable to effectively and safely plan their pregnancies are more likely to experience pregnancy complications. For women who have preexisting conditions, such as diabetes, coronary artery disease, or arthritis, unintended pregnancies can be life threatening. Additionally, children born of unplanned pregnancies, face increased risks of premature birth, low birth, poor nutrition, and infant mortality.

Neither judge ruled on the constitutionality of the provision. However, as we have previously explained, the federal contraceptive coverage rule does not violate the First Amendment because it is a neutral law that does not target a particular faith and applies to everyone equally.  It is constitutional.

Abington Memorial Hospital and Holy Redeemer: Putting Women’s Health at Risk by Imposing Religious Doctrine on Patients

Amal Bass, WLP Staff Attorney

UPDATE: On Wednesday, July 18, 2012, Abington Health and Holy Redeemer Health Systems announced that they have abandoned their plan to merge.

In late June 2012, Lawrence Merlis, president and CEO of Abington Health System, and Michael Laign, president and CEO of Holy Redeemer Health System announced a joint venture between the two suburban Philadelphia systems with the goal of creating a regional health system by the spring of 2013.  The result will be a partnership between a secular hospital system and a Catholic system, a partnership that will dilute the quality of care women across the region have come to expect from Abington Health’s facilities.  In particular, the partnership will force Abington to stop providing comprehensive reproductive healthcare for women, thereby putting women’s lives at risk.

In 2011, Abington performed 64 abortions, primarily for women with high risk pregnancies that compromised their health.  For women with such high risk pregnancies, abortion can be a life-saving procedure.  For other women, abortion terminates non-viable pregnancies, possibly due to fetal abnormalities or placental problems.  For all women, regardless of the reasons behind needing the procedure, it is a fundamental right protected by the United States Constitution, and it should be a choice that is available at a hospital they trust.

Women who receive their gynecologic and obstetric care from Abington Health, which is one of the largest maternity care providers in the Commonwealth, will have to find abortion services elsewhere.  Hospital officials have not commented on whether Abington will continue to perform selective reduction, a process after infertility treatments where the number of embryos is reduced to increase the woman’s chances of carrying a pregnancy to term, which is typically banned at Catholic hospitals. The hospital claims that it will continue to perform contraceptive services and counseling, such as tubal ligations and vasectomies, which are typically prohibited by Catholic doctrine, but it is unknown if the services could be withdrawn at any time.  

Thus, the full impact of the imposition of Catholic doctrine on Abington’s medical services, if the joint venture goes through, remains to be seen.  Catholic health systems are slowly monopolizing health care across the country.  As of 2011, approximately one-fifth of all hospital admissions in the United States and between 10 and 20 percent of admissions in Pennsylvania are to Catholic hospitals.  These systems impose their religious beliefs, contained in the “Ethical and Religious Directives for Catholic Health Care Services,” on patients of all backgrounds and faiths, interfering with the medical practitioner-patient relationship.  In 2010, the Catholic Church made its position on women’s health very clear when it excommunicated a nun serving as a hospital administrator for permitting doctors to perform an abortion to save the pregnant women’s life.

The result of this policy in practice could be that women in need of abortion, possibly needed to save their lives, may have a delay in treatment or may require a transfer while they are unstable to a non-Catholic hospital.  Abington may thus become vulnerable to medical malpractice lawsuits and claims for violations of the Federal Emergency Medical Treatment and Labor Act (EMTALA) for putting religious doctrine before women’s health.  The imposition of Catholic Directives on patient care may cause experienced staff to leave the hospital, and it may also cause patients in the area to seek maternity and other care elsewhere.

Opposition to Abington’s partnership with Holy Redeemer is growing.  Rabbis from congregations in the area have written a letter to Abington’s Lawrence Merlis, protesting the planned joint venture.  A Facebook group, Stop the Abington Hospital Merger, has also formed.

To learn more about the dangers of receiving reproductive health care at Catholic-affiliated hospitals, see the prior posts on this blog, “Patients Are Denied Health Care on Ideological Grounds” and “Nun Excommunicated from Catholic Church for Saving Woman’s Life” and WLP’s 2012 report, Through the Lens of Equality: Eliminating Sex Bias to Improve the Health of Pennsylvania’s Women.

First Amendment Does Not Give Church Leaders Right to Impose Beliefs on Women

Terry L. Fromson, Women’s Law Project Managing Attorney

Advancing the church’s unrelenting pursuit of control over women’s reproductive lives, Joe Watkins’ op-ed published in The Philadelphia Inquirer on June 3 (Mandate for health services touches full religious spectrum) incorrectly labels the federal contraceptive coverage rule unconstitutional.  The First Amendment does not give church leaders any right to impose their beliefs about contraception on women.

Nor do women want the church to interfere in their personal decisions about use of contraception.  Most women, including active churchgoers, use contraception at some time in their lives.  They do so because contraceptive coverage is essential to their health care, both for achieving healthy pregnancies and for combatting medical conditions unrelated to pregnancy. The cost and lack of insurance coverage for contraception have remained barriers to access for many.

The federal contraceptive coverage rule, which ensures access to contraceptive services, prescriptions, and devices for millions of women, is constitutional.  Neutral laws that do not target a particular faith and apply to everyone equally do not violate the First Amendment.  The contraceptive coverage rule is such a law.

Contrary to the op-ed’s assertion, the challenged federal rule does not require religious institutions to pay for contraceptive coverage.  It exempts churches themselves and then goes beyond and provides that religiously affiliated institutions that perform non-religious functions do not even have to pay for coverage.  Religiously affiliated schools, hospitals and charitable institutions employ individuals of all faiths and accept public dollars to provide their services.  Individuals who work for them should not have to give up their Constitutional rights.

For more information, see our blog from February, “Obama Administration Ensures a Wide Range of Contraceptive Insurance Coverage, Even at Religiously-Affiliated Institutions”

Also see WLP work on Health Care Reform.