A hospital system run by the Sisters of the Third Order of St. Francis in Illinois will begin covering fertility treatments in their employees’ health plans only for people in opposite-sex marriages, according to Bloomberg Law.
OSF Healthcare, which operates 15 hospitals and 132 medical facilities in Illinois, changed the language of its health plans for the 24,000 employees to define infertility as “the inability for a married couple of opposite sex spouses to conceive.”
While there have been instances throughout the past three decades of Catholic healthcare networks refusing to perform certain procedures, the wording of the new OSF Healthcare policy marks the first time a Catholic health network has refused to offer medical services to queer people simply on the basis of sexual orientation. Within the medical plan description, the exclusionary intent is made explicit:
“OSF supports means of assisting married opposite sex spouses to conceive in ways that assist, and do not replace the marital act of sexual intercourse.”
Legal advocates argued that the policy violates non-discrimination statutes in employment law:
“Peter Romer-Friedman, an attorney at Gupta Wessler PLLC who is representing a same-sex couple that filed a complaint against New York City for fertility treatment coverage discrimination, called such language a ‘pretty clear violation’ of federal workplace discrimination law, as well as the 2020 US Supreme Court decision in Bostock v. Clayton County. In that case, the justices ruled that Title 7 of the Civil Rights Act protects LGBTQ employees from discrimination.”
OSF Healthcare argued that the plan is protected by federal religious liberty laws, and that the policy is simply based upon compliance with church teaching in matters of healthcare, stating:
“The employee benefits we provide are driven by the OSF Mission and are in full compliance with the Ethical and Religious Directives for Catholic Health Care Services as well as state and federal laws, including the Religious Freedom and Restoration Act.”
Religious organizations and individuals have generally been granted broad deference in regards to handling LGBTQ+ issues, as in the cases Masterpiece Cakeshop and Fulton v. City of Philadelphia. However, healthcare law experts are less sure that the same logic would apply in the case of OSF Healthcare. The Bloomberg Law article explained:
“A defense based on RFRA [Religious Freedom Recovery Act] will be difficult, attorneys said, as the argument typically used is that the institution has a religious objection to the procedure on the whole. In this case, the policy doesn’t ban the procedure, just dictates who can seek it.”
While the stipulation for limiting fertility treatments to opposite-sex married couples is novel, queer advocates observed that religiously-affiliated agencies who receive federal funding seeking to restrict resources to cisgender and heterosexual clients is nothing new. Jennifer Pizer, acting chief officer of Lamba Legal, observed that Catholic agencies have attempted to curtail the private conduct of their employees before:
“‘There are many faith-based institutions that provide services to the public supported by taxpayer funding, and yet wish to discriminate against some of the people they hire and some of the people that they serve.'”
While OSF Healthcare’s policy signals a continued resistance to LGBTQ+ equality, the Biden administration has taken steps to ensure that queer people have equal medical and reproductive rights, according to The Hill. A US Citizenship and Immigration Services rule change in August will now protect LGBTQ+ parents who have accessed fertility treatments. The article stated:
“. . . [C]hildren born through assisted reproductive technology are considered born in wedlock, a huge step for same-sex married couples who use in vitro fertilization or surrogacy to have a child.”
The change in federal regulation reveals the contested nature of queer healthcare access which continues to play out in hospitals and the courts. LGBTQ+ workers and parents continue to face an uncertain patchwork of medical access when seeking fertility services which are readily available for opposite-sex couples. Whether the full dignity and rights of queer people will come to be recognized across Catholic healthcare will depend on the capacity of lay and ordained leaders to recognize the reflection of God in every patient.
—Andru Zodrow (he/him), New Ways Ministry, August 8, 2022