RFRA and contractual obligations

[Robert Destro]

     Sandy Levinson writes:

     Am I missing something, or is St. Francis arguing that it has an
     absolute right unilaterally to abrogate contracts it has signed
     because it now decides that those contracts violate Church teachings?
     If this is correct, then, IMHO, the hospital should lose, unless we
     are willing to allow anyone and everyone to abrogate contracts upon a
     sincere assertion that it would violate his/her religion to comply
     with given terms of contracts (on which the other contracting party
     had relied, etc.).

I suspect that all of us are "missing something": the facts of this
particular case.  Not only would we need the disputed contract language
before us, but we would also need any other language in the contract or
other applicable documents that would define the expectations of the
parties to the negotiation.

The term "family planning services" could include everything from Natural
Family Planning (which the Catholic Church approves -- a method to be
distinguished from the so-called "rhythm method"), all the way through
abortion (which it clearly rejects) and various methods of assisted
conception (some of which are acceptable and others which are not).  Since
we don't know how the term is defined in the contract or any language it
incorporates by reference, the speculation that "the hospital should lose"
-- or that it is trying to do something unilaterally -- is premature,
notwithstanding the arbitrator's decision.

Though it is impossible to tell from the news account, it may well be that
the hospital administrators unilaterally changed the *interpretation* they
had been giving those terms in years past.  I seriously doubt (though I
could be mistaken) that any Catholic hospital administrator in her right
mind would lay "family planning services" (broadly defined) on the table as
an item for bargaining.

More likely (and I have seen this in practice several times), nobody ever
bothered to read the fine print in the health care coverage purchased for
members of the bargaining unit.  This might explain the use of the phrase
"inadvertently" (though "negligently" might be more appropriate) in the news
account.

The likely scenario is that nobody paid attention to the issue until they
either 1) overhauled their insurance coverage and the definitions had to be
looked at under the terms of the directive from the USCC; 2) somebody filed
a claim for a procedure, drug, or service that was objectionable, and it
was noticed by either the insurer or the staff and brought to the attention
of senior administrators; or 3) someone within the hospital staff -- most
likely someone within the bargaining unit of nurses who *objected* to the
coverage -- noticed it, asked if her (or his) suspicions were true, got an
"I don't know, we'll check" for an answer, and got precisely the answer
they were suspecting all along. [My personal vote is with #3, but #2 is
equally plausible. #1 is, to me, the most unlikely scenario.]

One last point: The clear and unambiguous social teaching of the Catholic
Church, repeated many times over since Leo XIII's 1891 encyclical "Rerum
Novarum" ("On the Condition of the Working Classes") took up the cause of
labor as a moral issue, is that resolution of labor disputes through
peaceful negotiations fosters the inherent dignity of both workers and
managers.  Unions have long been supported by the Catholic Church and its
social teachings concerning the inherent dignity of the human person.  It
would therefore be inappropriate -- at this point at least -- to assume too
much about the hospital's position.  It unquestionably faces an ethical
dilemma under the teachings of the Church, whatever position it takes.

Let me end by posing a question about the "other side" of this bargaining
equation: the Union.

     Assume, for purposes of argument, that the bargaining unit of nurses
     involved in this dispute is divided among itself concerning the
     legitimacy of asking a Catholic hospital to provide "family planning
     services" which do not comport with the teachings of the Church.
     Assume further that this division of opinion is widely known both to
     the rank-and-file, and to union negotiators.

     To what extent do labor and anti-discrimination laws, including Title
     VII, require union leadership to put the issue of the union's
     bargaining position on this issue directly to the membership?

     Bob Destro
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     Robert A. Destro                                  Destro at law.cua.edu
     Columbus School of Law                                  202-319-5202
     The Catholic University of America                  fax:202-319-4498
     Washington, D.C. 20064-8005                   http://www.law.cua.edu