NEW YORK — As the nation’s leading Roman Catholic bishop, Cardinal Timothy M. Dolan of New York has been spearheading the fight against a provision of the new health care law that requires employers, including some that are religiously affiliated, to cover birth control in employee health plans.
But even as Dolan insists that requiring some religiously affiliated employers to pay for contraception services would be an unprecedented, and intolerable, government intrusion on religious liberty, the archdiocese he heads has quietly been paying for such coverage, albeit reluctantly and indirectly, for thousands of its unionized employees for over a decade.
The Archdiocese of New York has previously acknowledged that some local Catholic institutions offer health insurance plans that include contraceptive drugs to comply with state law; now, it is also acknowledging that the archdiocese’s own money is used to pay for a union health plan that covers contraception and even abortion for workers at affiliated nursing homes and clinics.
“We provide the services under protest,” said Joseph Zwilling, a spokesman for the Archdiocese of New York.
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As president of the U.S. Council of Catholic Bishops, Dolan has consistently rejected similar arm’s-length compromises offered by the Obama administration, which has agreed to exempt many religious institutions from the provision, but not religiously affiliated employers like schools and hospitals that employ people of many faiths and do not exist primarily to inculcate religious values.
In February, the bishops opposed a proposal that would have allowed employees of those nonexempt religious institutions to receive contraceptive coverage through policies paid for directly by insurance companies. The New York Archdiocese is also suing the federal government to stop the mandate.
“There remains the possibility that ministries may yet be forced to fund and facilitate such morally illicit activities,” Dolan said at the time.
The archdiocese agreed to cover its own health workers long before Dolan became archbishop of New York, and even today insists that it has no choice. As a result, about 3,000 full-time workers at ArchCare, also known as the Catholic Health Care System, receive coverage for contraception and voluntary pregnancy termination through their membership in 1199 SEIU United Healthcare Workers East, a powerful health care workers union, said Dave Bates, a spokesman for the union.
ArchCare, which runs seven nursing homes and other health facilities, gives its 1199 union workers the same coverage they would get at more than 100 other nonprofit hospitals or nursing homes in the New York area, because ArchCare voluntarily belongs to the League of Voluntary Hospitals and Homes, which negotiates with the union every few years for a joint labor contract.
Bruce McIver, the president of the league since 1991, said he recalled some concern by Catholic organizations about paying for the contraception benefits in the mid- to late 1990s. But in recent years, as the number of Catholic hospitals in the city dwindled, “they just kind of stopped, from my perspective, paying attention to this issue,” he said.
“Eventually, the Catholics just said, you know, we are going to ignore the issue and pay into the fund and people are going to make their own choices about contraception and so forth,” McIver added.
During union negotiations, “I don’t remember it coming up in the last dozen years or so, ever,” he added. “In a place like New York, their employees, not all of whom are Catholic, would react pretty badly.”
ArchCare, like other employers in the league, does not directly pay for the coverage. Instead, employers contribute to the union’s National Benefits Fund, in amounts roughly 25 percent of each employee’s base pay; that money is used to pay for the insurance coverage. It is not known how many ArchCare workers actually use the disputed services.
Zwilling, the spokesman for the archdiocese, said Cardinal John J. O’Connor and the archdiocese “objected to these services’ being included in the National Benefit Fund’s health insurance plan” when joining the league in the 1990s. But the cardinal then decided “there was no other option if the Catholic Church was to continue to provide health care to these union-affiliated employees in the City of New York,” Zwilling said.
Since 2002, other New York Catholic agencies with standard commercial insurance have been subject to a state mandate to provide contraceptive services, Zwilling added. Fordham University, for example, covers contraception for employees and students. But rather than nullify the issue, “in fact, these rare exceptional concessions have made the bishops even more aware of the gravity of the situation and lead to the attempt to remedy the matter on a national level,” he said.
In theory, ArchCare could have negotiated independently with the union to avoid providing its 1199 employees — health support staff members ranging from physician assistants to orderlies — abortion and contraception coverage. The archdiocese avoids providing those services for 1,100 other ArchCare employees, for example, by insuring them through a special self-insurance plan that is exempt from the mandate. But in reality, “it would be very difficult,” McIver said. “It’s hard to go backwards.”
Similar skepticism was expressed by Scott LaRue, the chief executive of ArchCare. “It doesn’t matter whether you join the league or you don’t join; the league determines the contract, and then the union goes and forces the same arrangement on the other homes whether you are in the league or not,” he said.
Religious employers nationally have often covered contraception, to comply with state health care mandates or because they simply did not realize they were doing so, said Stephen S. Schneck, director of the Institute for Policy Research and Catholic Studies at the Catholic University of America, in Washington.
“It’s surprising, but a good number of employers don’t really get into the weeds that much with their insurance plans to know” if they are covering contraception and sterilization, Schneck said.
Even among the more than two dozen for-profit companies suing the Health and Human Services Department over the mandate, some were paying for contraception and other objectionable coverage until recently, including American Manufacturing Corp., a mud pumping company in Minnesota whose owner, Gregory Hall, is a Catholic deacon who played a pivotal role in helping to free the trapped Chilean miners in 2010.
Hall’s lawyer, Tom Matthews, said his client realized that he was covering contraception for his employees only in December, when reviewing what the government would require in his next health care contract. More recently, he was “very upset” to find the plan had also been covering abortion, Matthews said. A federal court granted the company an injunction that will allow it to stop the coverage until the courts settle the matter.
Another company, Korte & Luitjohan Contractors in Illinois, found out in August that its insurance was covering abortion, contraception and sterilization “as a mistake,” according to Edward L. White, senior counsel at the American Center for Law and Justice in Washington. Korte is one of seven companies represented by the American Center in a challenge to the mandate.
Federal courts have dismissed most of the roughly 30 lawsuits filed against the mandate by Catholic dioceses and other nonprofit corporations, because the government is not enforcing the mandate for religiously affiliated nonprofits until August. The case brought by the New York Archdiocese, however, is moving forward. The mandate already applies to for-profit companies, but many of those suing have been granted reprieves until the end of their legal cases.
In courtrooms, government lawyers have pointed out to judges that some of the employers challenging the mandate have already been providing similar coverage. But Mark Rienzi, senior counsel at Becket Fund for Religious Liberty, which is also representing companies suing against the mandate, said that so far “the courts have not bought the argument that, aha, you must not really mean it if you haven’t caught it before now.”
Sarah Lipton-Lubet, an analyst at the American Civil Liberties Union, which supports the contraception mandate, sees the matter differently.
“I can’t begin to understand the argument that coverage that has been part of the plan for however many years is suddenly anathema,” she said.