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“With Liberty and Justice for

All ?”Attacking Religious Liberty as Counter-

Cultural

Dr. Marie T. Hilliard, BSN, MS (Maternal Child Nursing), MA (Religious Studies), JCL (Canon Law), PhD, RN

Director of Bioethics and Public Policy: National Catholic Bioethics Center

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Objectives

Discuss state public policies impacting religious liberty in the delivery of health care.

Analyze strategies used to protect religious liberty in a pluralistic society.

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Impact of Secular Relativism

“The potential transformation of the

Establishment Clause from a guardian of religious

freedom into a guarantor of public secularism raises prospects at once dismal and dreadful.” - Stephen

Carter

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Four Areas: State Level

Not Federal - Yet

Contraceptive & Same-Sex Policy Mandates

Statutes/Constitutional Amendments Protecting Marriage

Gender Identity Statutes

Assisted Suicide Statutes

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Contraceptive Mandates (34 States)

Exemptions: CT, DE, IL, MD, MA, MO, NV, NM

Exclude Abortifacients (as state defines):AR, GA, IL, ME, MO, NC, RI

Redefine Church Ministries: AZ, AR, CA, HI, NY, NC, OR

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New York State Court of Appeals: Bias

of Women’s “Rights” over Religious

Liberty

Unanimous

“…would deprive thousands of women employed by church affiliated organizations of contraceptive coverage.”

“…weigh against plaintiffs‟ interest in adhering to the tenets of their faith the State‟s substantial interest in fostering equality between the sexes, and in providing women with better health care.”

US SC refused to hear.

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Supreme Court of CA

“Certainly the interest in eradicating gender discrimination is compelling. We long ago concluded that discrimination based on gender violates the equal protection clause of the California Constitution (art. I, § 7(a)) and triggers the highest level of scrutiny. (Sail’er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 17-20.)”

US SC refused to hear.

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Escalating Problem

Society redefining our ministries.

Advancing secular political agendas.

Changing sexual mores;

Abortion of demand;

Redefinition of the human person;

Mandating violation of our own tenets.

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615 US Hospitals/Medical Centers: < if counted as individual facilities

Employ 725,000 workers

Annually serve 5.5 million over-night patients and many millions more out-patients

US Health Care IS Catholic Care

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Only Three Procedures Unavailable

through Catholic Health Care. We Promise

We Will Not:

Take your life, even if you ask us to.

Deliberately harm your unborn child, even if you ask us to.

Chemically or surgically mutilate you through a directly so intended act, even if you ask us to.

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Emergency Contraception (EC)

ER Sexual Assault Mandates

• 19 States/DC: information, administration, or arrangement for transportation to another facility

• IL: Only state providing conscience exemption in statute for health care agency.

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On the Front Lines: Nurse Loses Job

St. Tammany Parish Hospital (not RC) refused to grant a reasonable accommodation for religious beliefs; instead terminated her full-time position.

Alliance Defense Fund defended her and she won; Took 4 years.

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Pharmacist: Emergency Contraception

(EC)

US FDA: Pharmacist dispense to 17 yr olds; no prescription; nationwide

24 States other legal provisions

13 States conscience provisions

AR, CO, FL, GA, IL, LA, ME, MS, SD, TN, WA

With alternative access: CA, WI

Conflicting administrative/judicial rulings AZ, WA

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Dignitas Personae

8 Sept 2008

•The effect of inhibiting implantation is certainly present, even if does not cause abortion every time;

and conception not occurring after every act of

sexual intercourse.

• “It must be noted, however, that anyone who seeks to

prevent the implantation of an embryo which may possibly

have been conceived and who therefore either requests or

prescribes such a pharmaceutical, generally intends

abortion.” (n. 23)

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Moral Certitude and EC

Object: Anovulatory effect (only possible before LH surge)

Intent: Defend by preventing (ERD #36)-

Ovulation

Fertilization

Sperm capacitation Cannot occur quickly enough

Circumstances: Testing consistent with above.

EC on request of victim/response to legal mandate (who intend to prevent implantation) = immediate material

cooperation intrinsic evil of abortion.

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The Limits of Conscientious

Refusal in Reproductive Medicine

American College of Obstetricians and Gynecologists, Nov 2007

•Conscience only accommodated if duty to patient met;

•Physicians of conscience refer to providers willing to

provide morally illicit procedures;

•Are to locate practices in proximity to these other

providers;

•In “emergencies” physician to act against conscience.

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American Medical Association's Board of

Trustees 17 June 2008

“supports legislation that

would require individual pharmacists and pharmacy chains to fill legally valid prescriptions or to provide immediate referral to an appropriate alternative dispensing pharmacy without interference.”

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1st Amendment

Establishment Clause

Free Exercise Clause

“For the most significant aspect of the separation of church and state is not, as some seem to think, the shielding of the secular world from too strong a religious influence; the principal task of the separation of church and state is to secure religious freedom.” Carter

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1st Amendment, Adopted in 1791,

Redefined

Employment Division v. Smith (1990)

No obligation to demonstrate prevailing state interest.

RFRA 1993

Boerne v. Flores overturned based on states‟ rights: prevented Archdiocese of San Antonio from demolishing part of an historic church.

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Blind Obedience: Consequences

Creates system of professionals who blindly follow directives rather than conscience, putting society at risk.

Such authoritarian environment continues to allow the catastrophic violations of human life and dignity witnessed in oppressive governmental regimes abroad.

? And in USA?

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Prohibit discrimination based on marital status: 33 States

13 provide religious exemption.

Prohibit discrimination based on sexual orientation: 20 States

18 provide religious exemption.

As laws promulgated legislating rights of marriage to same-sex couples, implications on Church ministries

Particularly true if legally recognize same-sex relationship, but do not provide for a religious exemption:

CO, HI, IA, MA, ME, NY, OR, WA.

Laws Re Marital Status

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CT,* IA, MA, NH,* VT,* DC pending Congressional confirmation; Recognize: NJ, NY, TX (for divorce) & DC

DOMA Statutes: 42 states

Judicial interference reduced to 38, requiring state constitutional amendments (30) defining marriage

NJ,* ME: Civil Unions.

CA, MD, NV, OR, WA, WI, DC: Domestic Partner; also CO, HI have reciprocal beneficiary law

* Some religious protections

Same-Sex Marriage: All States by

Courts; Civil Unions; Domestic Partners

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Gender Identity

50 states prohibit gender discrimination 37 explicit religious exemption.

20 states laws Gender Identity: Any initiative for religious exemptions

labeled violation of civil rights. Implications Catholic schools: first grade

teacher- Monday as Ms. Jones; Tuesday Mr. Jones.

5 states that recognize SS unions/Gender Identity have RFRA‟s CT, IL, NM, PA, RI

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Same-Sex Parent Adoption

10 states prohibit discrimination:

CA, MD, ME, MA, NV, NJ, NY, OR, VT, WA

FL by court, recognize out-of-state.

Can we cooperate?

Immediate material cooperation „causing to happen‟ the violation of the rights of the adopted children.

Parents “obliged to form their children by word and example in faith and in the practice of Christian life.” Canon 774 §2

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Criminalized: 37 states by statute 6 states by common law.

Homicide law: UT, NC, WY, VA (VA also civil penalty)

Against public policy: OH

Assisted Suicide

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Court Action: MT (Supreme Court: not criminalized; no constitutional right; to legislature)

By ballot: OR, WA

Other forms: Terminal Sedation CA; VT: law requires health care providers to

inform terminally ill patients of all legal options, including terminal sedation (patient sedated: unable to eat/drink; the patient would die of starvation or dehydration).

Assisted Suicide: Legalized

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CA SC: anti-discrimination rights of lesbian take precedence over religious liberty of MD.

CA contracting policies: recipients large state contracts must offer domestic partner benefits.

NJ Methodist camp ground lost tax-exempt status for refusing same-sex union ceremony.

Religious Liberty

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Canada

•Calgary’s Bishop Frederick Henry: accused of “discriminatory” comments for pastoral letter on marriage and the nature of the family.

•British Columbia Human Rights Tribunal fined Knights of Columbus $2000 for refusing to rent hall for a same-sex wedding reception.

•Ontario Supreme Court forced Catholic high school to allow a homosexual male student to bring his “boy friend” to senior prom.

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US HHS, “Ensuring that Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices In Violation of Federal Law.” 2008.

Federal Freedom of Choice

Act

The Future?

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States’ Bias Against Religion

“The potential transformation of the Establishment Clause from a guardian of religious freedom into a guarantor of public secularism raises prospects at once dismal and dreadful.” Carter

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The very secular society that depends on the services of the Church, which is the largest provider of nongovernmental, nonprofit health care, social services, human services, and education in the United States, will be responsible for the outcome.

ENOUGH!