MERGER OF CATHOLIC HEALTHCARE WITH SECULAR INSTITUTION

[Kim Daniels]

I think we've both stated our positions, so I won't try your patience any
longer.  But I'd still be interested in hearing what law someone might use
to support an establishment clause claim against a newly-merged hospital,
and similarly, what cases the state actor will point to when he tries to
deny a merger on these grounds and runs into a free exercise challenge.

Also, one more question: what actually happens if, as you suggest, the state
rejects the merger as against the public interest?  Do both hospitals go
under?  Does one go under on its own, dissipating resources that might have
gone to the communty's remaining hospital?  I assume economics or regulation
or both cause health care institutions to contemplate merging.  If that
avenue is closed off to them, what are some likely results?

Finally, a small point: I fully recognize that, besides abortion, the ERD's
do not allow Catholic hospitals to perform other procedures as well; I've
just been using abortion as a stand-in rather than continually list them in
these already long e-mails.  Needless to say, I think Catholic hospitals
deserve  just as much first amendment protection with regard to these
services as they do with regard to abortion.  As for whether the Church
overreaches by trying to "impose" its beliefs on secular institutions with
which it enters into economic arrangements,  I assume that the secular
institutions enter those arrangements freely, with regard to their best
interest, and with the recognition that one cost of doing business with
Catholic entities is that those entities must follow Church guidelines
regarding participation in religiously proscribed acts.

Kim Daniels
Thomas More Law Center


 ----- 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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