MERGER OF CATHOLIC HEALTHCARE WITH SECULAR INSTITUTION

[David E. Guinn]

Quick responses.

1.  I think the test is neutral.  The requirement is that the health care needs be met.  There are efforts to accommodate by evaluating the total community need.  However, when those needs are not going to be met due to actions by the hospital (i.e. merging and eliminating services) then the least restrictive course is to require that the merging entities come up with some way to meet the need.  (NB This is not a situation where someone arbitrarily seeks to alter the behavior of the faith based hospital - it is linked to the action of the provider in merging and eliminating an available service.)

Clearly, as a general rule the state cannot interfere with the institution's speech (i.e. a doctor can advocate use of illegal drugs if s/he wants to) but it can regulate activity.  Moreover, since government funds are involved, the abortion counseling decision could apply.

2. I admit that whether or not the state would choose to enforce a right to access is contested.  Roe et al has established a right to choose not a right to effect that choice.  However, if the state did elect to recognize this as a legitimate right then I believe that a healthcare provider could be compelled to find ways to accommodate that right.  The state can clearly compel religious parents to provide normal health care (blood transfusions etc.) in spite of the fact that it may violate their "religious" understanding of health.  Many of the religiously prohibited reproductive health practices can have significantly adverse measurable health consequences for woman.  To claim, for example, that tubal ligation for a woman whose health would be harmed by another pregnancy presents no identifiable harm except according to the religious beliefs of the RC.

3.  In theory, I believe it is possible for a faith based hospital to opt out of state supported health care and, hence, avoid the problem of monopoly created by regulation.  The system is one of certification of beds that qualify for state reimbursement.  In practice it would be impossible for any such hospital to survive outside of Medicaid/Medicare.

4.  The conscience statutes generally adhere to a position that the medical professional cannot be compelled to perform an abortion or other act against their conscience and that the institution must accommodate them.  However, in many situations the medical professional could lose their license for violating a basic ethical rule of the profession and they and/or the institution may be held liable if that refusal results in harm to the patient.  This is one of those unresolved tensions that gets lost in the nice little world of statute drafting.

5.  I don't see how Sherbert or Rosenberger apply.  They are not dealing with a monopolistic expenditure of state funds or the denial of the rights of others.  Even the charitable choice statutes have all made it perfectly clearly that while the state may support a faith based provider of social services, the state cannot do so without providing a secular alternative.

6.  I agree that I don't think that a Catholic institution will simply acquiesce and provide religiously proscribed reproductive health services.  As I said in my earlier post, the traditional path of spinning off a reproductive health specialty provider was an eminently practical and appropriate response.  The problem is that the new ERDs prohibit that -- and are even written to try and alter it retroactively.  Legally, I cannot see how they can do this where the subsidiary was a significant condition for the merger.  I don't think you can make a FE claim to overcome a standard contract and/or property law claim.  (That's like Rome's efforts to reassert control over colleges like BC and Notre Dame that are no longer owned by the Church.)  (PS  Don't over estimate the financial contributions made by the Church to the hospitals.  While Catholic Healthcare is very successful, it is not because it is being subsidized by the Church.)

David
  ----- Original Message ----- 
  From: Kim Daniels 
  To: RELIGIONLAW at listserv.ucla.edu 
  Sent: Thursday, January 03, 2002 4:31 PM
  Subject: Re: MERGER OF CATHOLIC HEALTHCARE WITH SECULAR INSTITUTION


  As I'm no health care regulation expert, I really appreciate David Guinn's helpful post.  A few points:

  1.    As I understand your explanation, hospitals have a specific legal obligation to "meet the health care needs of the communities they serve", such that their licenses will be revoked if they fail to do so.  Yet if a licensing board (or whatever the relevant authority is) defines "health care needs" so as to effectively deny licenses to hospitals affiliated with a specific religion, doesn't its action fail Smith's neutrality test, thus subjecting that action to strict scrutiny?  If not, in all likelihood don't such licensing schemes contain exceptions and exemptions, such that they are not "generally applicable"?  As another alternative, isn't there a speech component to the services that an identifiably religious hospital offers to the public, such that a hybrid rights analysis becomes viable?

      Assume, then, for the sake of argument, that strict scrutiny applies.  Is this really the least restrictive means to achieve the purported state interest?  If a community has a compelling need for abortion and sterilization services, surely a solution lie somewhere other than at the door of the Catholic hospital.  I also think it's worth pointing out that the burden on Catholic hospitals is significant: they aren't merely being told to refrain from religiously motivated activity that has negative externalities, but rather are being required to actively engage in conduct that they find religiously objectionable.  Finally, doesn't Thomas v. Review Board prevent the state from burdening free exercise by denying a state benefit (here, the license) because of conduct mandated by religious belief?  
      
  2.    While we're at it, what are the free speech ramifications of a hospital licensing scheme that only offers licenses to hospitals which symbolically promote a content-based, highly-charged definition of "health care needs"?  After all, Catholic hospitals no doubt believe that they are best serving a community's health care needs when they provide services in keeping with Catholic teaching on the dignity of human life, and likewise believe that to facilitate abortion and sterilization would be the opposite of health care.  Can the state deny them  licenses based on these views?

  3.    Your argument hinges on the existence of a hospital monopoly within a given community.  Isn't it significant to the analysis, however, that these monopolies are created by state regulation?  In other words, it seems counterintuitive to allow the state to limit the number of hospital beds in a community, and then use the limited number of hospital beds as an excuse to weaken hospitals' free exercise rights.

  4.    I'd be interested in your views on the impact of federal and state conscience protection laws on these mergers.  42 USC 300a-(7) protects health care providers from being forced to provide abortions or sterilizations, and some 42 states provide health care facilities with similar conscience protection.

  5.    I'm not convinced that  state regulation, licensing, and funding create a "de jure establishment" given current state action doctrine (the fuzzy borders of which I only fuzzily know), but even if they do, that's no reason to believe that establishment clause concerns trump free exercise rights, correct?  Don't Sherbert, Rosenberger, etc. argue to the contrary?

  6.    Finally, as a practical matter, it seems highly unlikely that a Catholic hospital would respond to a licensing board's (or AG's) demand that it facilitate abortions and sterilizations -- matters on which it has staunch, long-standing beliefs, recently rearticulated with regard to this specific situation -- by meekly agreeing to participate in the objectionable procedures.  More probable: such hospitals will lose the support and resources of the Catholic Church and lose their viability in the process, further reducing the range of health care services available to particular communities.

  Kim Daniels
  Thomas More Law Center
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