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Refused and Confused—A Commentary by Linda Greenhouse ’78 MSL

The following commentary was posted on newyorktimes.com on October 6, 2011.

Refused and Confused
By Linda Greenhouse ’78 MSL

The refusal by an upstate New York town clerk to sign marriage licenses for same-sex couples, as reported on the front page of The Times last week, can be seen simply as a discordant footnote to the march of marriage equality in New York State. But seen in a broader context, it is also more than that.

When the clerk, Rose Marie Belforti, explained that “God doesn’t want me to do this, so I can’t do what God doesn’t want me to do,” she placed herself among a growing number of individuals and institutions with public responsibilities who claim a right to opt out. Often, but not always, their reason is anchored in religious belief. Whatever the reason, such claims pose troublesome issues of law (of course, the Ledyard, N.Y., town clerk’s refusal is now the subject of a lawsuit) and public policy.

A few years ago, a county official in Pennsylvania refused to issue a marriage license because the would-be groom, while providing proof of identity in the form of a Mexican passport, could not prove that he was in the United States legally. The couple sued (the would-be bride was an American citizen, as was their young child) and won a judgment from a federal district judge, A. Richard Caputo, who found that the “fundamental character of the right to marry” was not dependent on citizenship.

The Pennsylvania official was simply an immigration-policy freelancer (although I wonder what would happen today under Alabama’s anti-immigrant law that was upheld in substantial part by a federal district judge last week; one of its provisions invalidates contracts to which one party is an undocumented immigrant, and marriage is, after all, a contract.) More common are pharmacists who assert religious reasons for refusing to dispense emergency contraception, the “morning after” pill that prevents pregnancy after unprotected intercourse.

What are we to make of public health workers who use the power of their state-issued licenses to impose their own version of morality on those they are licensed to serve? While nearly all states permit medical providers to refuse to perform abortions, no such consensus has emerged with respect to birth control. Theissue comes up repeatedly, and the states are all over the lot. Five statesrequire pharmacists or pharmacies to fill all valid prescriptions for contraception (California, Illinois, New Jersey, Washington and Wisconsin.) Six others allow pharmacists to refuse to dispense emergency contraception (Arizona, Arkansas, Georgia, Idaho, Mississippi and South Dakota.) Several other states exclude emergency contraception from their Medicaid plans or from required coverage for contraception in state-regulated insurance plans.

While contraception has been a back-burner issue compared with the much more visible debate over insurance coverage for abortion, that may soon end. A fierce debate, although largely still under the radar, surrounds the Obama administration’s proposal to require private insurance plans to cover “women’s preventive services” without requiring a co-payment.

According to the proposed rule, which was issued Aug. 1 and which adopts a recommendation by the Institution of Medicine, these services include “access to all Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling.” As the Department of Health and Human Services describes the purpose of the requirement: “Family planning services are an essential preventive service for women and critical to appropriatelyspacing and ensuring intended pregnancies, which results in improved maternal health and better birth outcomes.”

Neither the fact that the rule does not apply to abortion or “abortifacient drugs,” nor that 28 states already require employer-provided insurance plans to cover contraception, has kept opponents from describing the proposal as “attacking the consciences of our nation’s healthcare providers,” as a recent publication by the “Task Force on Conscience Protection” of the Witherspoon Institute put it.

The Witherspoon Institute, a conservative research organization that has assumed a leading role on the intellectual religious right from its base in Princeton, N.J., has numerous objections to what it calls “the radical nature of this looming invasion of religion liberty.” What, exactly, is the invasion? On one level, it is the way the rule limits its religious exemption to an employer, institution or organization that primarily serves a religious mission, primarily employs co-religionists, and primarily “serves persons who share its religious tenets.” In not extending the exemption to hospitals, universities and other organizations that have religious roots but that open their doors to the general public, the administration’s rule simply mirrors the policies of many states, and represents no significant departure.

The deeper objection emerges from the final paragraph of the Witherspoon task force’s four-page statement: the real problem turns out to be “an irrational commitment to unrestrained sexual expression,” a “new federal orthodoxy concerning human sexuality.” In other words, an objection to birth control as affirmative federal policy. In the year 2011, with half of all pregnancies unintended and with countless tears, both crocodile and sincere, shed over the fact that nearly half of those end in abortion, we are still, amazingly, re-fighting not only the birth control wars but the sexual revolution itself.
The social revolution that brought same-sex marriage to New York seems a brushfire by comparison.

Seventeen years ago, a Chicago police officer named Angelo Rodriguez sought an exemption from an assignment to guard an abortion clinic in his precinct. He argued that his Catholic faith prohibited him from any acts that might facilitate abortion, including protecting doctors and patients. His commander offered to accommodate him with a transfer to a district without any abortion clinics. Finding theoffer inadequate and insisting on his right to an exemption, the police officer sued.

He lost in both federal district court and in the United States Court of Appeals for the Seventh Circuit. The appeals court held that the city had done all that was required under Title VII of the Civil Rights Act of 1964, which obligesemployers to make “reasonable accommodation” to an employee’s religious needs. Judge Richard A. Posner wrote a separate concurring opinion to make a larger point. Beyond deciding whether a particular offer was an adequate accommodation, Judge Posner said, the court should make clear that police officers and firefighters simply have no right “to recuse themselves from having to protect persons of whose activities they disapprove for religious (or any other) reasons.” The real objection to such exemptions, he explained, was not to administrative inconvenience, “though that might be considerable in some instances.” Rather, “the objection is to the loss of public confidence in governmental protective services if the public knows that its protectors are at liberty to pick andchoose whom to protect.”

Or, I would add — as I’d like to think Judge Posner might — whom to grant marriage licenses to or whom to fill birth-control prescriptions for. Ordinarily, I don’t think that Judge Posner can be topped in reasoning or rhetoric, but in this instance, I will give the last word to Gov. Andrew M. Cuomo, in his succinct response to the marriage-license refusal issue: “When you enforce the laws of the state, you don’t get to pick and choose.”