THE RELIGIOUS CONSULTATION
on population, reproductive health & ethics

San Francisco Chronicle, October 5, 2004

High Court Declines Religious Dispute over Contraceptives

Catholic Charities challenged law on drug coverage

A California law requiring employers who provide prescription drug coverage to include birth control for women remained intact Monday when the U.S. Supreme Court denied review of Catholic Charities' claim that it shouldn't have to pay for practices it considers sinful.

The justices, without comment, turned aside an appeal by Catholic Charities of Sacramento from a decision in March by the California Supreme Court. The state justices ruled that the 4-year-old law was a valid anti-discrimination measure that didn't interfere with religious beliefs or practices.

The church-affiliated charity remains "free to express its disapproval of prescription contraceptives and to encourage its employees not to use them" as long as it treats male and female employees equally, the California court said at the time.

Monday's decision was the first opportunity for the nation's high court to review any of the laws passed by 21 states that require employers to include contraceptives in health plans that cover prescription drugs. Another challenge is pending in New York state courts.

The court action is "a huge victory for working women who have suffered unfair and unjust discrimination," said California Attorney General Bill Lockyer, whose office defended the law. "As the California courts have consistently ruled, nonreligious employers cannot discriminate against women in the workplace based on their employers' religious beliefs."

He was referring to the law's narrow definition of "religious" employers, who are exempt from the contraception requirement. The exemption applies to churches but not to affiliated entities like Catholic Charities, whose mission and clientele are secular.

Catholic Charities attorney Kevin Baine said Monday's action was disappointing, but he predicted the Supreme Court would eventually confront the issue of "whether it violates a church entity's religious freedom to subsidize conduct it considers immoral."

"If the state of California can coerce Catholic agencies to pay for contraceptives, it can coerce them to pay for abortions," Baine said.

Catholic Charities, which has 1,600 employees in the state, has been providing contraceptive coverage during its appeals of the case. The law also covers 52,000 employees of Catholic hospitals in California.

Kevin Eckery, spokesman for the Catholic Diocese of Sacramento, which oversees Catholic Charities, said the diocese was studying the case to determine whether it has any choices besides providing contraceptives or eliminating drug coverage, an option it considers unacceptable. The agency will follow both the law and "the teachings laid down by the church," he said.

The state laws were enacted after federal regulators approved the male potency drug Viagra in 1996, and it was quickly included in health insurance plans that had denied coverage of birth control pills for 40 years.

About half the health plans in the state excluded female contraceptive coverage when the state law was passed in 2000, forcing women of childbearing age to pay 63 to 68 percent more for health care than men, according to state officials.

The California law's exemption for religious employers applies only to those whose mission, employees and clients are primarily religious. The exemption does not cover Catholic Charities, which -- though it describes itself as an arm of the church -- employs and serves mainly non-Catholics.

In challenging the law, Catholic Charities argued that the religious exemption was too narrow and was motivated by bias against Catholic agencies. The state's high court in March disagreed, saying the exemption had been requested by Catholic organizations and should not be considered discriminatory merely because it could have been broader.

The sole dissenter from the March ruling, Justice Janice Rogers Brown, said the state was "interfering with religious practice ... by making a judgment about what is or is not religious.".The case is Catholic Charities of Sacramento vs. California, 03-1618.

E-mail Bob Egelko at begelko@sfchronicle.com.

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