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An inconceivable argument: does a law ensuring equal access to prescription drugs mean that the catholic hierarchy will become morally complicit in "immoral acts"?

EARLY 40 YEARS AFTER THE US Supreme Court's Griswold v. Connecticut decision legalized birth control for married couples, a New York appellate court in a predominantly Catholic upstate county was confronted in February with arguments from an attorney for the Catholic church that contraception is "intrinsically immoral."

"There was a time not long ago when it was a crime to dispense contraceptives," attorney Michael Costello began, reminding the five-judge panel of the pre-1965 era when birth control advocates were arrested for such offenses, often at the behest of Catholic bishops. With seven nuns in traditional habits, a priest and the director of the New York State Catholic Conference arrayed behind him in the courtroom, Costello set forth his complaint: "Now the Catholic church is being forced to pay for contraceptives. There is something wrong with that!"

The problem, Costello said, is the New York Women's Health and Wellness Act, which requires that employee health insurance plans include contraceptives if prescription drug coverage is offered. At the behest of the Catholic Conference, which is the lobbying arm of New York's eight Catholic bishops, state lawmakers wrote in an exemption from the requirement for religious employers. The exemption, however, was more narrowly drawn than the church had wanted, allowing the exception only for "bona fide" religious employers that employ and serve exclusively people of their faith (such as diocesan offices and convents). The lead plaintiff in the lawsuit, Catholic Charities of Albany County, does not meet such requirements, Costello conceded, even though "it is the social ministry of the church."

New York State Assistant Solicitor General Shaifali Purl, defending the law, explained that it serves a public purpose of eliminating discrimination against women in health care. The law, she noted, is generally applicable to all employers and does not target the Catholic church or its affiliated agencies. If the narrow religious exemption clause does not apply to Catholic Charities, she said, that is because the agency has voluntarily gone into a marketplace "that does not share their ideas" to deliver social services and health care to diverse people using employees from a variety of faiths.

She was met with a withering comment from Presiding Justice Anthony Cardona: "So, this case comes down to that the Catholic church has to pay for contraception because they went out to serve the poor." Just the day before, Cardona had been sworn in for another 14-year term. Among his "supporters" at the ceremony had been a priest from a local Catholic church with whom Cardona had often played basketball as a young man, the Albany newspaper reported.

Up on the bench with Cardona was Justice Edward Spain, who hails from a large and prominent Irish-Catholic family in the Albany area. He appeared to be listening intently to Costello's argument that the state should be protecting the Catholic church's religious liberty in taking "what is a very unpopular position here." Judge Spain wondered out loud whether the Catholic church was disproportionately affected by the law (compared to other denominations that do not oppose contraception) commenting that "there does appear to be some denominational preference here."

Later Spain joined in the questioning of Solicitor General Purl by a third judge, Anthony Carpinello, who wondered if the contraceptive coverage requirement could set the stage for the state to require that religiously-affiliated agencies pay for abortions for their employees. "Why are prescription drugs any different than abortion services?" Judge Carpinello asked. Judge Spain followed up by asking, "Don't you agree that abortions could be added to that list?" The judges apparently were unaware of the Weldon Amendment adopted by the US Congress in 2004 that prohibits states and any other level of government from "discriminating" against health care providers, insurers or employers by requiring them to provide or pay for abortions.

There was some skepticism of the church's arguments, even from Judge Carpinello, who questioned whether having to provide health insurance that includes contraceptive coverage actively involved the church in supporting or advocating the use of something the church finds immoral. "You are only leaving open the option for these employees to purchase contraceptives," he said. "You are not telling them to buy them." When Costello insisted that paying for contraceptives forced the Catholic agencies to appear to endorse birth control, thus violating their freedom of expression and religious liberty, Judge Carpinello commented: "They are not requiring that you have contraceptive literature in the back of the church."

But it was Justice Karen Peters, the only woman on the five-judge panel, who most vigorously challenged Costello's arguments, noting that Catholic Charities receives millions of dollars in public funds and questioning the notion that "the church as an employer should be able to control the conduct of its employees." Looking intently at Costello, she asked, "If you had an employee who was not married and filled a prescription for Viagra, could you fire them?" Costello, shifting uncomfortably, insisted the church's aim was not to control its employees' behavior, but rather to avoid being "morally complicit" in immoral acts.

Costello and Catholic Charities, who had lost their case in New York's lowest court, will get a decision from the Appellate Division, Third Department, in the spring. A similar lawsuit challenging California's contraceptive coverage requirement went all the way to that state's highest court, which upheld the law.

LOIS UTTLEY director of the MergerWatch Project of Family Planning Advocates of New York State (
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Author:Uttley, Lois
Geographic Code:1U2NY
Date:Jun 22, 2005
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