As the Catholic Church expressed outrage against the White House in recent days for a health care mandate they say violates their conscience, it stood to reason that the question of whether Mitt Romney forced Catholic hospitals to do the same would resurface. And on Tuesday, it did.
Santorum, in an op-ed, said that President Barack Obama's requirement that Catholic institutions include contraception in their employee health insurance programs, was "not the first time that elected officials have trounced on the fundamental right to religious freedom."
"In December 2005, Gov. Mitt Romney required all Massachusetts hospitals, including Catholic ones, to provide emergency contraception to rape victims," Santorum said.
Gingrich, campaigning in Ohio, took the same tack, but was more direct.
"There's been a lot of talk about the Obama administration's attack on the Catholic Church. Well the fact is, Gov. Romney insisted that Catholic hospitals give out abortion pills against their religious belief when he was governor," Gingrich said, according to NBC News.
The Romney campaign hit back quickly.
"We expect these attacks from President Obama and his liberal friends. But from Newt Gingrich and Rick Santorum, it’s a clear indication of desperation from their campaigns," said Romney spokeswoman Andrea Saul.
The Romney campaign pointed out that as governor, Romney unsuccessfully proposed eliminating all health care mandates.
Privately, Romney backers make a few points in pushing back against the charge that the 2005 law was an act by Romney that would have forced Catholic hospitals to go against their religious beliefs.
Romney vetoed the bill, they pointed out. This is true. Romney wrote an op-ed in the Boston Globe defending his veto. And then the Democratic-controlled state legislature overrode Romney's veto.
But what Romney supporters don't mention is that the Massachusetts Department of Health had issued a ruling exempting Catholic hospitals from the emergency contraception requirement, and that Romney overturned it. Romney said he was simply following the advice of his legal counsel, but he also said at the time: "My personal view, in my heart of hearts, is that people who are subject to rape should have the option of having emergency contraception or emergency contraception information."
Many conservatives will argue that Romney should have stood behind the Department of Health's ruling.
“They've taken the position now that the pre-existing statute somehow does not shield Catholic and other private hospitals from this new mandate. I think there is a solid legal argument against that position" Daniel Avila, associate director of public policy for the Massachusetts Catholic Conference, said at the time.
The Romney defense does not end here, though. David French, an author and attorney who is president of the Foundation for Individual Rights In Education and who helps run a group called Evangelicals for Mitt with his wife, Nancy, argued last week that Romney would have done more harm than good by fighting the provision.
Romney's decision to reverse the Department of Health ruling, French wrote in National Review, "ended a looming fight with the legislature (which was committed to universal application)."
If Romney had fought the legislature, French wrote, "the situation in Massachusetts (and elsewhere) could be much worse."
"Lawsuits filed under sub-optimal facts in more pro-abortion jurisdictions rarely result in quality precedent and often do more harm than good," French argued. "Fights picked with extremist pro-abortion legislatures rarely turn out well for the cause of life."
It's something of a circuitous and tortured chain of logic to be sure. But that's the Romney defense on procedure.
It's almost as complicated when it comes to the question of whether the requirement for Catholic hospitals to dispense emergency contraception -- the morning after pill to be specific -- was a violation of their conscience.
Again, behind the scenes, Romney backers point to the provision in Catholic beliefs that say emergency contraception is allowed for rape victims in some cases. The specific provision comes from the U.S. Conference of Catholic Bishops' Ethical and Religious Directives for Catholic Health Care Services.
"A female who has been raped should be able to defend herself against a potential conception from the sexual assault," it says in Directive 36. "If, after appropriate testing, there is no evidence that conception has occurred already, she may be treated with medications that would prevent ovulation, sperm capacitation, or fertilization. It is not permissible, however, to initiate or to recommend treatments that have as their purpose or direct effect the removal, destruction, or interference with the implantation of a fertilized ovum."
That's not a blanket approval for using emergency contraception. The Boston Pilot, the official newspaper of the Boston Archdiocese, wrote at the time that "church teaching supports providing emergency contraceptives to rape victims who are not pregnant since it can be considered a form of defense against an unjust aggression."
The Pilot pointed out that guidelines from Caritas Christi Health Care, which at the time oversaw the Catholic hospitals in the Boston area, said that a female sexual assault victim should be able to protect herself against a potential conception as a result of an assault, "if after appropriate testing, there is no evidence conception has already occurred."
Caritas Christi was sold in 2010 to Cerberus Capital Management, which renamed the system the Steward Health Care System.
So was the Emergency Contraception Access Act simply a provision that encouraged Catholic hospitals to do something they already were doing? Was it, in fact, something that would cause them to go against their religious beliefs?
Maria Parker, then the interim executive director at the Massachusetts Catholic Conference, said unequivocally that it was.
"This is a serious interference with conscience and religion," she said in 2005 testimony to the state legislature's Joint Committee on Public Health.
The Huffington Post tried to get comment from Catholic hospitals in Massachusetts about how they deal with the law now. But as the Globe put it in 2005, "Catholic hospitals are extremely reluctant to discuss the issue."
That's because some appear to be dealing with the law on their own terms. NARAL Massachusetts, a pro-abortion group, found in 2008 that "St. Elizabeth’s Medical Center in Brighton and Holy Family Hospital in Methuen told NARAL Pro-Choice researchers posing as rape counselors they refuse to offer emergency contraception, according to a NARAL report."
The NARAL report found that five out of nine Catholic hospitals in Boston "make emergency contraception readily available, compared to 95 percent of the 61 secular hospitals."
"Hospital leadership, however, insists that their staff is well trained and follows the law 'in all cases,'" the NARAL report said of the Catholic hospitals.
That may be because, as Avila told the Globe in 2005, the law passed by the legislature did not explicitly repeal the religious exemption that Romney's counsel said was superceded by the 2005 law.
''As long as that statute was left standing, I think those who want to rely on that statute for protection for what they're doing have legal grounds," Avila said at the time.
C.J. Doyle, with the Catholic Action League of Massachusetts, said that it was likely that Catholic hospitals were continuing to do as they wished with regards to emergency contraception, using the legal and ethical complexities that surround the issue to keep pro-abortion activists and groups at bay.
"When the government makes unreasonable demands upon conscience, it's not surprising that such tactics would be used," Doyle told HuffPost.
So where does this leave Romney? It's clear that the 2005 law did offend some Catholic sensibilities in the same way that Obama's recent decision at the federal level has upset the national leadership of the Roman Catholic church. Romney has a legalistic defense for why Catholic hospitals were not allowed to remain exempt from a mandate to provide emergency contraception, an answer that won't impress staunch anti-abortion voters.
It is likely that there is enough nuance here for the Romney campaign to muddy the waters and avoid a clean hit. And Romney has gone out of his way to align himself with anti-abortion conservatives. His campaign also has pointed to his attempt to pass a bill in 2006 exempting Catholic Charities from a law requiring that gay parents be allowed to adopt children from all agencies or institutions that facilitated adoptions. sm.