The letter came as a shock to Belmont Abbey, because a little less than five months earlier, on March 12, that very same EEOC district office had issued a completely different determination: telling the college that its investigation had left it unable to conclude that there were any "violations of the statutes." The commission dismissed the complaint brought by eight members of the Belmont Abbey faculty challenging the legality of Belmont Abbey's anti-contraceptives policy.
To Belmont Abbey's administration, the March ruling had made sense. The Catholic Church deems the use of artificial contraception by members of either sex to be immoral. Although North Carolina, along with at least 24 other states, requires employers to include contraceptive coverage in health plans that cover other prescription drugs, North Carolina also, along with about 20 other states, grants an exemption to any tax-exempt "religious employer" that has the "inculcation of religious values" as one of its primary purposes and "employs primarily persons who share the religious tenets of the entity." Belmont Abbey, a 1,300-student institution that has received citations for excellence from U.S. News and the Princeton Review, was founded by Benedictine monks in 1876 and houses a Benedictine monastery on its premises. Its president, William Thier-felder, had discovered in 2007 that its employee health plan covered not only contraception but abortion and sterilization, also forbidden by Catholic teaching, and he moved quickly to have the terms of coverage changed. The college was certain that it fell well within the North Carolina religious exemption.
The implications for religious liberty in the EEOC's newly-arrived-at decision to ignore the good-faith beliefs of a religious institution closely affiliated with a religious order (Benedictines still do much of the teaching at Belmont Abbey) are obvious. "This is the first time that an unelected bureaucrat has expounded a novel -theory of law in this fashion and applied it to a 150-year-old small religious college in North Carolina," Eric Kniffin, legal counsel for the Becket Fund for Religious Liberty, which has taken on Belmont Abbey's case, told me in a telephone interview. Right now the college has the option of trying to arrive at a mutually satisfactory "conciliation" with the EEOC and, if those efforts fail, bringing a lawsuit against the commission. Neither Belmont Abbey nor the EEOC will discuss the current status of, or provide further details about, what sort of negotiations might be taking place.
But there are further implications. In taking its current stance, the EEOC is attempting to override not just the conscience-clause laws of nearly half the states but also federal court precedents. Even if a religious institution isn't involved, it's still an open question as far as the federal courts are concerned whether an employer's refusal to pay for contraceptives for its employees--which, in the case of birth-control pills, can add an extra $350 or so per year to the cost of hiring every female employee of reproductive age who is on the pill--really constitutes employment discrimination, either under the original 1964 act or under its 1978 amendment, the Pregnancy Discrimination Act. The latter bars discrimination "on the basis of sex" because of "pregnancy, childbirth, or related medical conditions." Contraception, of course, isn't pregnancy but a means of securing its opposite. And while birth control pills can confer health benefits, such as regulating menstruation or treating hormonal skin conditions, the reasons most women take them have more to do with lifestyle than health.
Just two years ago, the Eighth U.S. Circuit Court of Appeals in St. Louis, apparently the only federal appellate court to take up these questions directly, answered the employment discrimination question with a no. "While contraception may certainly affect the causal chain that leads to pregnancy, we have specifically rejected the argument that a causal connection, by itself, results in a medical condition 'related to' pregnancy for PDA purposes," Judge Raymond Gruender wrote for a 2-1 majority in Standridge v. Union Pacific Railroad Co. Gruender pointed out that the Eighth Circuit had earlier ruled that an employer's refusal to pay for (even more expensive) infertility treatments for female employees did not constitute sex discrimination under the PDA.
While the Standridge decision is legally binding only in the handful of Midwestern states that make up the Eighth Circuit, the case was considered so important nationally that -Senate majority leader Harry Reid and 29 other federal lawmakers signed an amicus curiae brief urging the Eighth Circuit to make contraceptive coverage mandatory under Title VII. The names of some of those signers are significant: not just Reid's but those of Henry Waxman, chairman of the House Energy and Commerce Committee and key author of the current House health care legislation, and Olympia Snowe of Maine, the only Republican besides Chris Shays to sign the amicus brief and also the only Republican to sign on to the Senate Finance Committee's health care bill that is currently pending before the full Senate. The Alliance for Justice, a Washington-based liberal advocacy group, issued a scathing denunciation of the Standridge decision titled "Keeping Them Barefoot and Pregnant" and making much of the fact that Gruender had been appointed to the Eighth Circuit by President George W. Bush, enemy of all things liberal.
The EEOC, however, has adamantly maintained--or at least has adamantly maintained while Democratic presidents who appoint commission members have held office--that prescription contraceptives belong in every employee health plan, or else. In a decision handed down during the last days of the Clinton administration, on December 14, 2000, the commission essentially stated that employers, in order to comply with Title VII, must not only cover "drugs, devices, and preventive care" related to contraceptives, but visits to doctors to prescribe and monitor them as well. "Contraception is a means by which a woman controls her ability to become pregnant," was the decision's way of reasoning to a connection to Title VII and the Pregnancy Discrimination Act.
The EEOC's push to enforce that interpretation became somewhat muted during the Bush years (the commission stayed out of the Standridge case, for example), but President Obama's appointments to the five-member commission suggest a more aggressive approach on this front. His acting chair, Stuart Ishimaru, appointed on January 20 right after the inauguration, promised to attack "both traditional and emerging forms of workplace discrimination." Another Obama appointee to the EEOC, Georgetown University law professor Chai Feldblum, has called for strict, no-religious-exemption enforcement of antidiscrimination laws, at least when it comes to gay rights. Connect the dots between March, not long after Obama took office, and the end of July, and it's hard not to surmise that Washington's EEOC headquarters played a role in the Charlotte district office's about-face in the Belmont Abbey case.
One problem for Belmont Abbey is that most other employers have thrown in the towel on contraceptives. The Union Pacific Railroad, which had balked at providing low-cost birth-control pills to 1,500 female employees affected by the Standridge ruling, gave up the fight at about the same time the decision came down, and the case never went to the Supreme Court for a definitive nationwide ruling. It's estimated that 90 percent of employers nowadays provide contraception coverage. Perhaps their theory is that it's cheaper than paying for childbirth, and a lot cheaper than paying for lawyers to fight a case like Standridge. Or perhaps, since employers (and insurers) are willing to subsidize their male employees' access to Viagra, and even, in some cases, Propecia, which contribute zilch to health but facilitate sexual fun, they believe they ought to do something similar to ensure that the women on their payrolls have a good time without worrying.
Even many Catholic colleges seem to have given in (I confirmed this with spokesmen for three of the larger ones: Boston College, DePaul in Chicago, and Loyola-Marymount in Los Angeles). Catholic college spokesmen typically cite state coverage mandates, which can be enforced brutally, even in states with conscience clauses. The California Supreme Court ruled in 2004 that Catholic Charities could not invoke California's religious exemption clause because most of the beneficiaries of its services weren't Catholic. There's also social pressure from a secular world in which contraception is the norm. The vast majority of Catholics these days practice birth control in the same fashion as their non-Catholic neighbors, and many professors and administrators at Catholic colleges define their institutions as independent from the official church and its dictates.
That leaves Belmont Abbey, which prides itself on its fidelity to traditional Catholic teaching, to fight nearly alone. Thierfelder has said that he will close down the school rather than give in to the EEOC's current mandate. He may well be obliged to do so. Whether under the so-called "public option" of government-run health insurance proposed by the House health care-overhaul bill, or the elaborately regulated coverage mandates contemplated in the Senate Finance Committee's version, it is all but certain that subsidized contraceptives will be part of the package. And so might be subsidized abortion, since congressional Democrats have refused so far to establish guarantees against that eventuality. Add to that an EEOC that seems determined to ignore exemptions for religious liberty, and while Thierfelder might hope for--and deserve--a court ruling that protects his institution's desire to live out its religious commitment, by the time he gets to court, it may be too late.
Charlotte Allen is a contributing editor to the Manhattan Institute's Minding the Campus website.