MERGER OF CATHOLIC HEALTHCARE WITH SECULAR INSTITUTION

[David E. Guinn]

----- Original Message ----- 
  From: Kim Daniels 
  To: RELIGIONLAW at listserv.ucla.edu 
  Sent: Friday, January 04, 2002 11:19 AM
  Subject: Re: MERGER OF CATHOLIC HEALTHCARE WITH SECULAR INSTITUTION


  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?
Nonetheless, the fact remains that as a result of the merger and service that existed pre-merger will not longer be provided post merger.  As I think Vance suggested, that does provide the state with grounds to deny the merger proposal unless some accomodation can be found.
  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? 
Again, the approach would not be to force the Catholic hospital to render proscribed services (which dispite your repeated references to abortion are far greater than that) but rather to preclude the merger unless arrangements were made to meet the public need.
  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.
I agree that at present these religiously proscribed health care services are not clearly mandated.  That does not mean that they could not be.  And the analogy to the blood-transfusion is not so far fetched when you consider that denial of some religiously proscribed services do present life threatening risks to the mother that are not exempted under the doctrine of double effect.  Nonetheless, the standard is neutral insofar as the state mandates that the service be provided and precludes actions (i.e. mergers) that would eliminate those services.
  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.
As stated in my prior post, I think they are so off point that they are not helpful here.
  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?
Home run or not - if patients are harmed as a result of these actions, I expect that the Courts will find liability.  Again, there are laws protecting the exercise of conscience by parents opting for spiritual treatment as opposed to medical treatment.  Many of the courts have followed a one bite rule - the parents get off once, but not twice for failure to treat.
  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.
I had no problem with the prior ERDs.  I thought they were reasonable and that they did affirm a Catholic identity.  However, I do think the most recent revision (like its effort in higher education) is over reaching in the sense of attempting to impose Catholic beliefs on secular partners that have entered into economic agreements with the Catholic insitution.  In terms of First Amendment analysis, I'm not sure what use they are because the courts will never reach them.

David
  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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