By Valerie Schmalz

Ruling: College wrong to not cover birth control

Belmont Abbey College could be test case of religious freedom in health care, education

Belmont Abbey College plans to fight a U.S. Equal Employment Opportunity Commission ruling that the Catholic college discriminated against female employees when it removed birth control as a prescription benefit from its health insurance plan two years ago. If necessary, Belmont Abbey President Dr. Bill Thierfelder said the North Carolina school would close rather than subvert its Catholic identity.

The battle is shaping up as a test case for whether religious institutions, particularly Catholic colleges that receive federal funds and admit and hire non-Catholics, have a right to exclude morally unacceptable health care options. Some also fear the federal ruling against the Benedictine liberal arts institution presages much worse scenarios for Catholic institutions if the House of Representative's 1,000-plus-page health care reform bill becomes law.

No compromise

"It is the clear, consistent, inconvertible, public, official, and authoritative teaching of the Roman Catholic Church that abortion, contraception and voluntary sterilization are actions that are intrinsically wrong and should not be undertaken because of their very nature," Thierfelder told Our Sunday Visitor, noting the college is among less than two dozen American Catholic colleges that have signed Ex Corde Ecclesiae, Pope John Paul II's 1990 apostolic constitution requiring Catholic colleges to teach Church-approved Catholic theology. "As a Catholic institution, Belmont Abbey is not able and will not offer nor subsidize medical services that contradict the clear teaching of the Catholic Church."

"There is no possible way that we will ever offer those services here. We will not offer them, we will not pay for them," he said. "There can be no compromise. I do not believe it would ever come to this, but if it was a case of that or closing the college, we would close the college."

'Dangerous precedent'

The EEOC ruling is based on Title VII of the 1964 Civil Rights Act, which forbids employment discrimination based on gender, among other factors. "By denying prescription contraceptives, respondent is discriminating based on gender because only females take prescription contraceptives," the July 30 EEOC letter stated and urged "informal conciliation" via the commission.

The title applies regardless of any federal funding, said Gary McCaleb, senior counsel at the Alliance Defense Fund, an Arizona-based organization devoted to defending religious liberty. He said the closer a college is to the Church's religious tenets in hiring, teaching and culture, the more defensible is its claim of religious exemption. The EEOC letter did not mention the religious nature of the college.

Belmont Abbey removed abortion, artificial contraception, tubal ligations and vasectomies from its employee health plan in December 2007 after a new employee discovered them in the Charlotte-area college's WellPath insurance plan.

Eight faculty members, six men and two women, filed complaints with the EEOC and the North Carolina Department of Insurance, charging gender discrimination. The original complaint objected to the loss of abortion and involuntary sterilization benefits as well but those were removed somewhere along the way, Thierfelder said, so the final EEOC ruling only addresses artificial contraceptive prescriptions. How six men employees were affected by gender discrimination in the case of birth control pills was not explained in the EEOC's July 30 letter to the college.

The insurance department first accepted Belmont Abbey's religious exemption, but after the The National Women's Law Center asked them to reconsider, the department responded back on March 13, 2008, stating that "as a state agency it is constitutionally prohibited from resolving disputes over ecclesiastical doctrine and religious tenets" and referred back to the judgment of WellPath, the insurance company, which had stated that it believed Belmont Abbey College met the statute's requirements of a religious institution. That effectively left the decision up to the EEOC.

OSV was not able to reach any of the complainants, but InsideHigherEd.com quoted associate philosophy professor Janet Blandford, who said she was a practicing Catholic who disagrees with Church teaching on birth control. "He's not open to any form of Catholicism except his own twisted brand," Blandford said of Thierfelder in a story published Aug. 11, saying she does not subscribe to the Church's teachings on birth control. "I'm staying. He's got to go."

"This ruling sets a dangerous precedent for Catholic employers that refuse insurance coverage for contraception. It has potential implications for all religious employers and could logically apply to abortion coverage," wrote Patrick Reilly, president of the Cardinal Newman Society, in an Aug. 10 letter to the U.S. bishops. The Virginia-based nonprofit is dedicated to renewing and strengthening Catholic identity at America's 224 Catholic colleges and universities.

Health reform tie

While 35 states mandate contraceptive coverage, there is no federal requirement for insurance plans to include it. Most large institutions, both corporations and colleges, self-insure under the federal Employee Retirement Income Security Act (ERISA), but many are also subject to some state guidelines. No state, or the federal government, requires abortion coverage. The annually renewed Hyde Amendment has prohibited most taxpayer-funded abortions since 1976.

"Are we worried about health care reform taking this and making it a thousand times worse? You betcha," said the Alliance Defense Fund's McCaleb.

"The college is confident that its actions ultimately will be found to be in compliance with all federal and state laws and with the U.S. Constitution. Accordingly, the college will be asking the EEOC to reconsider each of the current determinations it has made in connection with the charges filed against the college," Thierfelder said in a statement.

The whole case has larger implications, according to Thierfelder, who said the EEOC sent the college a March 12 letter and said the EEOC was closing its file on the issue "because it was unable to conclude that the college's decision to change the employee health plan violated the statute" and there was no finding of discrimination. Thierfelder said the case was then sent to Washington, D.C., which overruled the Charlotte EEOC office. Last month's ruling came as a surprise, and the college first heard about it when called by a reporter who had been supplied with the letter by one of the complainants, Thierfelder said.

"This is not just about Belmont Abbey. There is something bigger at stake here," Thierfelder said. "There is a bigger principle here as far as religious freedom -- what are we as Catholics going to be forced to do by our government?"

The EEOC also ruled in March that by publishing the names of the eight faculty members in a letter of explanation to the faculty that the college engaged in "retaliation" against them. Thierfelder said the college administration's response was to answer questions raised by college members who heard about the suit from the complainant faculty members. "In fact, I have First Amendment right to speak and defend our position and make sure we are not misrepresented and slandered," Thierfelder said.

Forced to comply

Belmont Abbey College is not the first institution targeted for its refusal to cover contraception. In 2004, the California Supreme Court ruled that Catholic Charities could not exclude contraception from its health plan because, under the California Women's Contraceptive Equity Act, it did not qualify as a religious employer since it employed non-Catholics and assisted non-Catholics via its social justice ministries. California Catholic Charities organizations now provide artificial contraception as a health benefit to their employees.

Case against contraception

The Catholic Church teaches that the use of artificial contraception is a sin. In its glossary, the Catechism of the Catholic Church states: "The use of mechanical, chemical or medical procedures to prevent conception from taking place as a result of sexual intercourse; contraception offends against the openness to procreation required of marriage and also the inner truth of conjugal love."

In addition, many artificial contraceptives are "interceptors" which stop the implantation of the embryo, causing an early abortion, said Marie Hilliard, director of bioethics and public policy at the National Catholic Bioethics Center in Philadelphia.

Valerie Schmalz is an OSV contributing editor.