MERGER OF CATHOLIC HEALTHCARE WITH SECULAR INSTITUTION

[Kim Daniels]

1.      For purposes of the constitutional analysis, I don't see why it matters
who initiates the merger.  The end result is that an entity will receive
state approval only if it forgoes rights guaranteed to it under the free
exercise clause.  And the fact that the Catholic hospital voluntarily enters
into the merger doesn't mean that they give up their rights when doing so,
nor should state approval be conditioned on such a sacrifice.

2.  David Guinn argued that the mergers we've been discussing are themselves
open to challenge on establishment clause grounds, given state licensing and
regulation, as well as a hospital's receipt of federal funds; I argued that
this view raises state action problems.  You say that you'd raise the EC
claim directly against the AG's ruling. From your earlier post it wasn't
clear to me that this distinction made a difference, since I assumed that a
party objecting to an AG's ruling would just raise an EC claim in a lawsuit
against the merger itself.  However, from what you say below it sounds like
an objecting party can challenge an AG's ruling directly, after it is
issued, through the regulatory process (thereby avoiding the state action
problem). How does that regulatory process work exactly?

Kim Daniels
Thomas More Law Center

-----Original Message-----
From: Law & Religion issues for Law Academics
[mailto:RELIGIONLAW at listserv.ucla.edu]On Behalf Of Vance R. Koven
Sent: Friday, January 04, 2002 2:52 PM
To: RELIGIONLAW at listserv.ucla.edu
Subject: Re: MERGER OF CATHOLIC HEALTHCARE WITH SECULAR INSTITUTION


At 12:19 PM -0500 1/4/02, Kim Daniels wrote:
>I'd argue that the widespread federal and state legislative
>consensus against forcing religious hospitals to perform abortions stands
as
>strong evidence that forcing them to violate their beliefs would *not* be
in
>the public interest.

I suppose it depends on your assumptions concerning who initiates the
merger. If the Catholic institution initiates it, nobody is forcing
them to do anything since it's an entirely voluntary transaction
whether to merge or not. If the secular institution initiates it,
then it is the one that has to answer to the state for the provision
of health services that might otherwise disappear.

As to Blum and Jackson, I don't think they apply. The issue we've
been talking about is not whether a hospital can, on its own
initiative, discontinue a line of service, which I assume it can
within the regulatory framework unless it's a
public hospital. Here we're talking about a *state* process of
issuing a discretionary ruling on whether the merger of these
entities is in the public interest. It would be an interesting
question, perhaps, whether, had the litigants in Blum and Jackson
made their cases at the regulatory level and not by way of collateral
attack on the actions of the regulated private entities, the state
action analysis would have been different. In any event, the question
I asked didn't have to do with what the hospitals can do, but what
the state AG can do.

--
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