ARTICLES

Lawmakers Try to Finesse Contraceptive Bill

HOW CAN CONSCIENCE HAVE THE LEAST EFFECT?

By Tom Barbarie

Governor Pete Wilson's February veto of a bill to force health insurance plans to cover prescription contraceptives has produced the desired effect: a similar bill which could become law before the end of April.

The new measure contains a conscience clause which the governor called for in his veto message. But the exemption applies only to religious organizations and their controlled subsidiaries, such as schools and hospitals. It would still force compliance from individuals and businesses owned by Catholics and others opposed to artificial contraceptives.

Even with the conscience clause, the new proposal, AB 1112, would make religious employers post notification that state law requires health care plans to pay for drugs and devices approved by the Food and Drug Administration. Those drugs and devices would then be available to religious organization employees under a publicly funded voucher system.

The bill also states, "Notwithstanding any other provision, the provision of family planning services shall not require the consent of anyone other than the person who is to receive the services." That would free a child covered under a parent's medical plan to receive contraceptives under the plan without parental consent.

The new bill, coined "The Women's Contraceptive Equity Act," replaces AB 160, which passed both houses of the California legislature, but without the two-thirds majorities needed to override Wilson's veto. Wilson, a long-time enthusiastic proponent of birth-prevention measures, said passage of such a bill without a conscience clause would have the opposite effect of that intended by the legislature, in that "religious organizations such as Catholic diocesan offices...could simply drop all coverage for prescription drug benefits in order to avoid violating their religious teachings."

The bill might thus "actually decrease, rather than increase, prescription drug benefits for many women," Wilson wrote, inviting the legislature to continue working with him on the issue.

That offer was quickly accepted by Assemblyman Robert Hertzberg (D-Van Nuys), who author of the vetoed bill. Hertzberg was joined by Martin Gallegos (D-El Monte) and 23 co-authors from both sides of the Assembly aisle.

During acrimonious Assembly debate over AB 160 early this year, Rod Pacheco (R-Riverside) took the floor to call for a "no" vote on AB 160, saying, "It does concern me that the author refused to include a conscience clause."

"Mr. Pacheco, I'm a little bit older than you, but I too am a Catholic," responded Don Perata (D-Alameda), and when I was growing up, we weren't allowed to have a conscience."

Perata, a 52-year-old former schoolteacher, sat down to a smattering of laughter, but was followed minutes later by Bill Campbell (R-Villa Park), who said, "It's one thing to have our debates; it's another thing to attack a religion." Campbell, also a Catholic, said he took issue with "having a big joke about religions in this discussion," and asked that the measure be defeated.

But only 29 members voted to kill the proposal, with 47 ayes and four absent, abstaining, or not voting. Six Republicans -- Marilyn Brewer, Jim Cuneen, Brooks Firestone, Brett Granlund, Steven Kuykendall and Peter Frusetta -- joined the Assembly's Democrats in the majority.

In the state Senate, the measure had passed 21-14, with five members not voting. The Senate vote went mostly along party lines, with Republican Bruce McPherson joining the Democratic majority and Democrat Ruben Ayala breaking ranks to cast a "no" vote. Fifty-four votes are needed in the Assembly to override a veto; 27 are needed in the Senate.

Even with the conscience clause thrown in by Hertzberg, it is not clear sailing for the latest bill. The wording of the clause remains at issue.

A spokeswoman in Wilson's office, Lisa Kalustian, in late March told News Notes, "Right now that bill does not represent the amendment that we had submitted to the author, and in its current form, we can't support it. If the author wants to discuss ways to make it work, we're certainly open to work with him."

As April began, Ellen Powers, an aide to Hertzberg, said that Catholic groups had withdrawn their opposition to the bill, which she noted could be acted upon and sent to the governor's desk for his signature within weeks.

Then, on April 2, Kalustian said, "The religious exemption isn't quite there yet, but we think we can work out any problems that are left."

Pacheco told New Notes he still favors an exemption for business owners as well as institutions.

Hertzberg's vetoed proposal was supported by the American College of Obstetricians and Gynecologists, Planned Parenthood Affiliates of California, the California Family Planning Council, the League of Women Voters of California, Zero Population Growth, and Californians for Population Stabilization, among others.

The California Catholic Conference was joined in opposing the vetoed bill by the California Association of Health Plans, Californians for Affordable Health Reform, the California Manufacturers Association, and the Department of Corporations.

In backing the bill, Planned Parenthood asserted that more than half of all pregnancies in the United States are unintended. The organization cited a study saying that 97 percent of health plans cover prescription drugs, but 67 percent of those do not pay for contraceptives.

Hertzberg, arguing on the Assembly floor against a conscience clause, said as many as nine million Californians could be affected by such an exemption. He has written that the birth control pill is "the most widely needed drug by women between the ages of 18 and 44 years."

During debate, Assemblyman Dennis Cardoza (D-Merced), a supporter of the bill, addressed Hertzberg, saying: "I'm a Catholic and I take my religion very seriously. I have a question for you: isn't it true that many Catholic hospitals now perform tubal ligations in their facilities?"

"Yes," answered Hertzberg.

A spokesperson for Mercy Hospital in San Diego said no tubal ligations for purposes of sterilization were performed at her institution. Phone calls to Bud Lee, president of the California Association of Catholic Hospitals, had not been returned by press time.

The California Catholic Conference, the lobbying arm of the state's bishops, had considered pushing for a broader conscience clause.

"Originally our hope and intent was that there'd be a conscience clause that would cover both individuals and organizations," said Ned Dolejsi, the conference's executive director. But, he added, "It is somewhat questionable legally whether or not we could prevail with a conscience clause that would cover an individual employer....At a certain point we had to make a choice as to which direction to go, and we felt that the compelling need to have a conscience clause in place was where we needed to draw a line in the sand."

Asked about the requirement that those institutions opting to invoke the conscience clause would still be faced with the necessity of posting notification, Dolejsi said: "As we explained to Mr. Hertzberg's staff, we don't accept that provision. The logic is the same as our reason for seeking a conscience clause, because we're not able to pay for it because it violates our conscience ....We do accept a responsibility to convey to someone that we don't offer that benefit, but we do that now: we're willing to accept that responsibility, but we're not willing to promote something we find [morally objectionable]."

Asked if he had any data about the Hertzberg assertion that Catholic hospitals perform tubal ligations, Dolejsi answered, "I wouldn't be the one to clarify that."