02/08/2013 09:47 am ET Updated Apr 10, 2013

Catholic University's Birth Control Policies Raise Questions About Public Funding

Fordham student health insurance, in compliance with state and federal law, covers contraceptives. However, because Fordham follows rules promulgated by Catholic bishops, the university prohibits the actual distribution of birth control prescriptions at campus health centers. This policy has inspired discontent among reproductive rights advocates within the Fordham community who believe that hindering access to birth control, even if the student insurance plan technically covers the prescription, conflicts with Fordham's receipt of public funds from the state of New York.

The "Ethical and Religious Directives for Catholic Health Care Services," issued by the United States Conference of Catholic Bishops, reads "The Church cannot approve contraceptive interventions that 'either in anticipation of the marital act, or in its accomplishment or in the development of its natural consequences, have the purpose, whether as an end or a means, to render procreation impossible.'"

Because of the directives, Fordham does not issue prescriptions for birth control at campus health centers. Fordham also prohibits the distribution of condoms on campus, a policy that members of both PIRC and the Leitner Center have chosen to disobey in the past.

Last year, Fordham received $1,140,657 in Bundy Aid. Bundy Aid is a program that provides public funds to support certain post-secondary institutions in the state of New York. The guidelines for Bundy Aid specifically require that the recipient institution be eligible for funds under the provisions of the New York state constitution, which explicitly prohibits the distribution of public aid to any university that is "wholly or in part under the control or direction of any religious denomination."

According to Martin Flaherty, professor and co-director of the Leitner Center, following the Bishops' directives on contraception conflicts with Fordham's obligation under the law. "Fordham may be affiliated with the Catholic Church, but it cannot be treated as an arm of the Church and still receive, as it does, substantial funding from the State of New York," he said. "Too often people refer to 'Catholic universities' as if they were a branch of the Church. At least in Fordham's case, this simply is not the case under the law."

However, Fordham Director of Communications Bob Howe said that "Fordham continues to respect, honor and value the tradition of its founders, the Jesuits, just as many independent American colleges and universities respect, honor and value their diverse traditions, religious or otherwise."

Howe said that in 1969 the New York State Commissioner of Education conducted a "thorough investigation of Fordham's governance structure and Religious Studies department" that found Fordham sufficiently independent from the Catholic Church to qualify for Bundy Aid. Howe said that because the investigation occurred 44 years ago, he did not know whether it included a review of the school's healthcare policies.

Despite following the directives, Fordham claims on the Student Health Services website to "make limited exceptions [regarding contraceptives] in writing appropriate prescriptions for the treatment of an existing medical condition accompanied by supporting documentation." However, the Fordham chapter of Law Students for Reproductive Justice (LSRJ) has documented refusal to provide contraception prescriptions despite students "having endometriosis, severe acne, ovarian cysts, and high risk of ovarian cancer."

Although Fordham's policy prevents students from obtaining birth control prescriptions at campus health centers, Fordham's health insurance does cover contraceptives in accordance with state and federal law. The Affordable Care Act requires student health insurance to include an annual "Well Woman Exam" in which students can visit an off-campus gynecologist free of charge. Aside from this, students pay deductibles to visit off-campus doctors.

"What may have been a relatively minor practical obstacle to accessing contraceptives for a law student can be something else entirely for an 18-year-old who has just moved to the Bronx" wrote Bridgette Dunlap, Adjunct Professor and Human Rights Fellow at the Leitner Center.

Dunlap and members of Fordham's LSRJ have attempted to provide Fordham students with the access to birth control that the school does not for the past two years. On Oct. 24, 2012, LSRJ hosted its second "Prescribe Fordham" event. Prescribe Fordham is a birth control clinic and sexual health fair where students can meet with volunteer physicians from the Institute for Family Health, who provide information about various forms of birth control, prescriptions for oral contraceptives and consultations about IUDs.

Dr. Lucia Mclendon, a physician from the Institute for Family Health who attended last semester's Prescribe Fordham event, said about half of the women she spoke with that evening had insurance, either through their parents or through the school. She explained that many of the women insured through the school said they had no idea they wouldn't be covered at the student health center when they signed the agreement for the insurance plan. Mclendon described many of the women she consulted with at the event as "healthy, young women who are already on birth control and show up at Fordham and go to student health and aren't able to get a simple refill." She called the inability to receive prescriptions from physicians at Fordham "disturbing."

Some of the undergraduates who attended the event cited the refusal to provide birth control prescriptions as one reason they do not seek any healthcare consultation at campus health centers. "It makes them seem incompetent," said one sophomore, who wished to remain anonymous.

A number of undergraduates who attended the first Prescribe Fordham event in 2011 encouraged LSRJ to advertise Prescribe Fordham to undergraduates in the future. However, when LSRJ and its co-sponsors tried to advertise the second event to undergraduates this past fall, the Administration prohibited them from doing so. Undergraduate Student Affairs refused to approve the event fliers for posting in Lowenstein and McMahon. In a voicemail, Lincoln Center Dean of Students Keith Eldredge said that the event "conflicts with the university mission."

Flaherty said he was troubled by Eldredge's decision to prohibit the fliers for several reasons, including the fact that Fordham receives public funds from the state of New York. "The prohibition [of advertising] was issued by an administrator arbitrarily under no written guideline of which I am aware," Flaherty said.

He added that it was "troubling that an administrator can take it upon himself to determine what 'Catholic teaching' entails against significant dissenting views from within the Church itself."

Whether Fordham is compliant with state and federal law is unclear, due to the lack of precedent regarding student access to contraception. The U.S. Equal Employment Opportunity Commission has found denying contraceptive coverage to be an example of sex discrimination. The New York Court of Appeals also found in Catholic Charities et al. v. Serio that it is constitutional to require religiously affiliated institutions to cover birth control through their health insurance policies, and the Supreme Court denied cert on the case in 2007.

Both of these rulings occurred in the context of employee benefits and speak to the issue of coverage, rather than access. It is unclear whether Fordham's policy conflicts with the findings.

According to statistics hosted on the Planned Parenthood website, more than 99 percent of sexually active women between the ages of 15 and 44 have used birth control. The number is almost just as high for sexually active Catholic women, at 98 percent. The same webpage states that of all women using oral contraceptives, 58 percent of them do so for reasons other than pregnancy prevention.

One-in-six Americans receives medical care from a Catholic-affiliated system, and this number does not include the two million students and workers who attend religiously affiliated universities.

Originally published by The Record at Fordham Law.