MERGER OF CATHOLIC HEALTHCARE WITH SECULAR INSTITUTION

[Kim Daniels]

Quick responses to your major points:

1. It's not true to say that "[health care] needs are not going to be met
due to actions by the hospital...."  While a hospital merger can lead to the
closing of one abortion provider, it's hard to see how an individual
hospital can be held responsible for the fact that there exists no other
health care provider willing or able to provide abortions within a
community, such that the new hospital can be required to sacrifice its free
exercise rights in recompense.  As for a merger's role in contributing to
the lack of abortion services: mergers occur for any number of reasons --
market forces, regulation, shifting demographics -- none of which the new
health care institution can fairly be said to have caused.  Why should it
have to pay such a high constitutional price for them?

2.    It's far from obvious that the least restrictive means to meet a
community need for abortion services is to force a Catholic hospital to
participate in such activity in violation of its religious beliefs.  In
fact, I'm hard-pressed to think of a method *more* restrictive of free
exercise.  Can you elaborate a little?

3.    How is it  "neutral"  to define the health care needs that a hospital
must provide in order to receive a state license to include highly-charged
abortion services?  To define a community's normal health care needs to
include abortion, such that an unwillingness to facilitate an abortion is
analogous to denying a child a life-saving blood-transfusion, is to move the
baseline all too forcibly.  Particularly in light of the widespread
legislative endorsement of a different baseline, one which recognizes that
certain reproductive services are not so necessary that health care
providers should be forced to provide them in violation of their beliefs.

4.    I wsan't arguing that Sherbert and Rosenberger govern; simply that one
proposition they uphold -- establishment concerns don't trump free exercise
concerns -- is applicable here, particularly as it's still unclear how an
establishment clause claim would actually work, given state action and other
issues.

5.     The conscience statutes are admittedly an ever-evolving hodge-podge,
but the federal statute, for instance, protects not just individuals but
hospitals as well, stating that "the receipt of [certain federal] grants . .
. by any . . . entity does not authorize any court or any public official or
any other public authority to require . . . (2) such entity to (A) make its
facilities available for the performance of any sterilization procedure or
abortion . . . ."  42 USC 300a-7(b).  With this statute and others like it
in the background, a liability suit against a hospital that conscientiously
refuses to provide such services isn't exactly a home run, right?

6.    You've mentioned a few times recent changes in the Church's Ethical
and Religious Directives, changes you think impractically shut down a
creative solution to the problem we're discussing.  I'd argue -- and I think
you'd agree -- that the Church did this to shore up the Catholic identity of
institutions that are still identifiably Catholic, but are feeling pressure
to allow that Catholic identity to erode, pressure some have inevitably
succumbed to.  Such action would seem to be well-advised if the Church wants
to preserve an identifiably Catholic presence in health care, and would seem
to be the operative definition of Catholic teaching on these matters for
purposes of any First Amendment analysis.

Kim Daniels
Thomas More Center


 -----Original Message-----
From: Law & Religion issues for Law Academics
[mailto:RELIGIONLAW at listserv.ucla.edu]On Behalf Of David E. Guinn
Sent: Thursday, January 03, 2002 7:17 PM
To: RELIGIONLAW at listserv.ucla.edu
Subject: Re: MERGER OF CATHOLIC HEALTHCARE WITH SECULAR INSTITUTION


  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

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