Under the Knife and the Cross

A Wave of Catholic Hospital Mergers Is Curtailing Medical Services, Especially for Women

Susan Jacoby is a freelance writer and former reporter for the Washington Post. A fellow at the Center for Scholars and Writers of the New York Public Library, she is working on a book on antireligious dissent in American history.

Elizabeth Lindenberg, a teacher and mother in St. Petersburg, Florida, was 46 when she learned that she was carrying a fetus with Down syndrome and decided to end the pregnancy. Lindenberg did not know that her private choice would set off a long battle over the Roman Catholic Church’s attempts to impose its rules on the non-sectarian hospital where her abortion was performed.

The conflict in St. Petersburg was precipitated by one of the least-publicized developments in American medical care of the past decade — a nationwide wave of profit-driven mergers between Catholic and non-Catholic hospitals. The mergers have forced many non-Catholic institutions to operate under health care guidelines issued by the National Conference of Catholic Bishops. These guidelines have already restricted access to reproductive health services, but they also have major implications for other forms of medical care and research.

The bishops’ “Ethical and Religious Directives for Catholic Health Care Services” not only prohibit abortion but the prescription of contraceptives (including the “morning-after” pill to rape victims), many infertility treatments, voluntary sterilization, and most embryonic stem-cell and fetal-tissue research.

This June, the American bishops revised the directives, first issued in 1994, in a move to tighten restrictions on both Catholic and non-Catholic partner institutions. In one major change pushed by the Vatican, the bishops ratified a provision denouncing elective sterilization as “intrinsically evil.”

But even before the revision, the Catholic rules had far-reaching consequences. Lindenberg’s 1997 abortion was performed shortly after St. Petersburg’s taxpayer-supported Bayfront Medical Center entered an economic partnership with two Catholic hospitals. Her procedure enraged local Catholic authorities and set off a chain of events that forced Bayfront not only to stop abortions but also to abide by all of the bishops’ guidelines.

It took a three-year fight, including separate lawsuits filed by the city and four public interest groups, to free Bayfront from the controversial consortium and restore a full range of reproductive health services.

Catholics for a Free Choice (CFFC), a group opposed to Vatican positions on abortion and contraception, estimates that approximately 159 such mergers have gone through in communities from California to Florida since 1990.

According to a report last year by the Alan Guttmacher Institute, an organization that focuses on reproductive health research, Catholic hospitals make up the single largest group of American nonprofit hospitals. These institutions account for approximately 17 percent of hospital admissions annually.

CFFC estimates that at least half of all mergers have led to significant restrictions on reproductive health services in the non-Catholic hospitals.

Enforcement of the Catholic rules varies considerably because some American bishops adhere far more strictly than others to Vatican orthodoxy. The recent toughening of the ethical guidelines is seen by many observers as an attempt to crack down on bishops lenient with non-Catholic partner hospitals that provide the prohibited reproductive health services.

“The impact is especially serious because all consumer health care choices are already being restricted by managed care,” says Lois Uttley, director of MergerWatch, an Albany-based project funded by Family Planning Advocates of New York State. “It’s just not easy today for the average person to take her business to another doctor or another hospital if she learns that certain medical services will no longer be provided.”

The official Roman Catholic position on the mergers is difficult to assess. Representatives of the Conference of Catholic Bishops generally refuse to be quoted by any publication or television program that also features the views of Catholics for a Free Choice — a group that considers itself the “loyal opposition” but has been sharply criticized by the Church hierarchy. The Conference’s press office failed to respond to five interview requests for this article.

“Attempts to tar opponents of these hospital mergers as ‘anti-Catholic’ are totally misguided,” says Rob Boston, a spokesman for Americans United for Separation of Church and State (a plaintiff in the St. Petersburg lawsuit). “Some of the most outspoken opponents are, in fact, Catholics who don’t agree with the leadership of their Church on such matters as contraception and abortion — or with attempts to make non-Catholics adhere to the bishops’ religious convictions.”

“Catholic bishops have no more right to make medical decisions for me than I do for them.”

At the local, state and national level, public interest groups — including Americans United, Planned Parenthood, the National Organization for Women and the National Women’s Law Center — have formed coalitions to oppose the mergers. MergerWatch serves as a national resource center for such groups.

These citizen groups are mounting legal challenges to the mergers through the First Amendment, federal anti-trust laws (on grounds that the mergers are creating local health care monopolies), and charitable trust restrictions (which sometimes specify as a condition of the original endowment that a hospital must carry out its functions in a nonsectarian way).

“Typically, these arrangements used to become a fait accompli before the public knew what was going on,” says Uttley. “Only later did the full impact, on medical staff as well as patients, become clear. What we’re trying to do is help local organizations to intervene earlier — to make sure that health care rights aren’t abrogated in backdoor deals from which the public is excluded.”

Lindenberg, for instance, knew nothing of the controversy created by her decision to end her pregnancy until an on-staff friend told her that she had been criticized at a hospital ethics board meeting. At the meeting, a Catholic nun, who was a member of the committee, successfully demanded an end to all abortions at Bayfront.

“My name was actually revealed and my most personal choice denigrated by strangers,” says Lindenberg, who was raised Episcopalian. “At first I couldn’t believe it, considering that this violated all rules of medical confidentiality. But when I found out it was true, I decided it was time to fight. Catholic bishops have no more right to make medical decisions for me than I do for them.”

Not Just an Abortion Issue

Though publicity concerning hospital mergers tends to focus on abortion, the Church’s potential influence on medical services extends far beyond that issue.

Many Americans are unaware that voluntary sterilization is the leading form of contraception in the U.S., with the birth control pill in second place. Female tubal ligations outnumber male vasectomies, and women’s operations (unlike men’s) must generally be performed in a hospital.

When the bishops recently approved language describing elective sterilization as intrinsically evil, they placed tubal ligations and vasectomies in the same moral category of Church teaching as abortion and euthanasia.

Susan Tew, a spokeswoman for the Guttmacher Institute, explains that sterilization is a particularly popular form of contraception for older women who have all the children they want. “Most women prefer to have the procedure done at the time they deliver their last child,” Tew notes.

The prohibition on sterilization means that a woman must recover first from childbirth and then check herself into another institution for a separate procedure at a later date — running the risk of an unwanted pregnancy in the interim.

That is exactly what happened to a mother of eight in Gilroy, California, who planned to have her tubes tied at South Valley Medical Center after she delivered her ninth child. Unfortunately, South Valley had just been purchased by a nearby Catholic hospital — and permission for the tubal ligation was denied. The mother became pregnant again before she could make arrangements to be sterilized elsewhere.

Susan Berke Fogel, legal director of the California Women’s Law Center, says the Gilroy case illustrates the disproportionate impact these mergers have on poor women. “There are only five OB-GYNs serving a population of 150,000 at the southern end of Santa Clara County,” she explains. “What is a mother with several young children supposed to do with them while she shops around for a hospital 50 miles away to perform a tubal ligation?”

Doctors Trim Their Consciences

Patients aren’t the only ones whose choices are limited by strict enforcement of the Catholic guidelines.

In some areas, medical personnel have been required, as a condition of employment, to sign a statement agreeing to abide by the bishops’ directives.

Dr. William van Druten, a psychiatrist in Duluth, Minnesota, had been on staff at the nonsectarian Duluth Clinic for 31 years when the clinic merged with St. Mary’s Roman Catholic Hospital in 1995. He was then asked to sign a pledge to abide by the Catholic rules.

When he refused to sign the document as written, adding “For Consenting Catholic Patients” in bold block letters, he was informed that his admitting privileges had been terminated. This meant he could no longer supervise his own patients if they needed in-hospital care. Van Druten, who was 63 at the time, opted for early retirement and became a local activist in the campaign against mergers.

When Dr. Goldner tried to have his patient admitted to a local hospital, he was told that the Catholic guidelines prohibited the operation as long as the fetus was technically alive. He then paid his patient’s $80 cab fare for a two-hour ride to the nearest hospital that performed abortions.

“Basically, I was asked to sign a religious loyalty oath,” he says. “I was in a position not to do it because I was so close to retirement age, but for most other doctors and nurses it was a matter of sign or lose your livelihood.”

Van Druten founded a group called Lake Superior Freethinkers, which, along with Planned Parenthood of Minnesota, succeeded this year in jettisoning a proposed merger that would have subjected every hospital in Duluth to the bishops’ guidelines.

At other hospitals where doctors have not been asked to sign pledges, they have frequently found their best medical judgment overruled by the bishops’ rules.

Several years ago, Dr. Wayne Goldner, an OB-GYN in Manchester, New Hampshire, was treating a 35-year-old patient whose cervical membranes ruptured when she was fourteen weeks pregnant. In cases when a woman’s “water breaks” before fetal viability, an immediate therapeutic abortion is necessary. Although the fetus will soon die, the chances of the mother developing a severe infection — and possibly losing her uterus — increase with each day.

When Dr. Goldner tried to have his patient admitted to a local hospital that had recently merged with a Catholic institution, he was told that the Catholic guidelines prohibited the operation as long as the fetus was technically alive. Goldner then paid his patient’s $80 cab fare for a two-hour ride to the Dartmouth Medical Center in Hanover — the nearest hospital that performed abortions.

He and other local citizens took their merger objections to New Hampshire’s attorney general. The attorney general ruled that the non-Catholic hospital, by agreeing to Catholic guidelines, had violated the nonsectarian mission spelled out in its original charitable trust.

Direct Vatican Intervention on the Rise

One stimulus to the spate of legal challenges against the mergers has been the Vatican’s increasing tendency to reverse decisions by bishops who interpreted the health care directives leniently. Observers say the recent toughening of the bishops’ condemnation of sterilization is one more step in that process.

In September 1999, the Sacred Congregation for the Doctrine of the Faith in Rome — the body that reviews interpretations by Catholic institutions of the Church’s moral teachings — overruled a decision by the bishop of Little Rock, Arkansas, to continue tubal ligations at a women’s center. The center was leased from a formerly nonsectarian hospital that had recently been purchased by the local Catholic health care system.

In Austin, Texas, Bishop John McCarthy had approved arrangements to continue tubal ligations at a public hospital that had merged with a Catholic institution, when conservative Catholics in his diocese protested to the Vatican. The Sacred Congregation ordered the bishop to discontinue the agreement.

In 1997, the Vatican acted directly for the first time to halt a merger between a Catholic and a non-Catholic hospital in New Brunswick, New Jersey. The unusual decision may have been prompted by the fact that the non-Catholic partner was the highly regarded Robert Wood Johnson University Hospital, a longtime leader in reproductive health care.

Many nonsectarian hospital boards have inexplicably caved in to sectarian demands — even when the secular hospital was in the stronger financial position within the partnership.

“Sadly, this shows there are a lot of hospitals that don’t have any strong commitment to reproductive health services,” says the California Law Center’s Fogel. “If there’s money to be made from a merger, throwing reproductive health services away is considered a small price to pay.”

But that isn’t true of every institution. In Lansing, Michigan, Sparrow Hospital — rated in a 3200-hospital survey as one of the top 100 hospitals in the U.S. — merged with a local Catholic health services system in 1997. In contrast to the across-the-board imposition of Catholic guidelines in St. Petersburg, the only demand made upon Sparrow was that abortions no longer be performed in-hospital.

The Sparrow board of directors then established a large fund to facilitate abortion referrals to a local women’s clinic and allowed staff members to provide abortion services outside the hospital. Other reproductive health services, including voluntary sterilization, were maintained, and staff members were not required to sign a pledge agreeing to abide by the bishops’ guidelines.

This March, Sparrow withdrew from the consortium when the locally based health care system merged with a larger statewide Catholic-owned system. Sparrow president and CEO Joseph F. Damore said the action “allows us to keep financial resources right here in Lansing to invest in our healthcare system and to fully control Sparrow’s future in the community.”

Since the Vatican has already intervened to overturn local agreements similar to the one Sparrow had formed, there was no guarantee that the larger health care system would have allowed the hospital as much leeway as the local Catholic system had.

Indeed, the June revision of the bishops’ health care directives virtually guarantees that the Church will take a second look at partnership agreements designed to preserve flexibility for the non-Catholic partner. The guidelines stipulate, “The Catholic partner in an [economic] arrangement has the responsibility periodically to assess whether the binding agreement is being observed and implemented in a way that is consistent with Catholic teaching” [emphasis added].

Unless a hospital is publicly owned (or strongly supported, as was the case at Bayfront), it is difficult to mount a successful First Amendment challenge to a merger.

Rob Boston, of Americans United for Separation of Church and State, points out that the federal judiciary, which moved to the right as a result of appointments during the Reagan-Bush administrations, has become increasingly resistant to First Amendment challenges based solely on an institution’s receipt of federal funds.

“There usually has to be some direct public support for a First Amendment case to hold up,” he says.

That is why so many public interest groups have turned to federal antitrust laws and charitable trust regulations to overturn mergers.

The California legislature has recently enacted what women’s groups regard as a model law to protect reproductive health care rights. The law requires local hearings whenever a hospital merger is proposed. An independent health impact assessment, specifically addressing reproductive health care, must also be made before the proposed merger is presented to the attorney general.

A key prevision requires health care providers to inform consumers of which health services they will and won’t provide.

“This is absolutely crucial,” says Fogel. “What we’re trying to eliminate are situations in which a woman chooses a doctor and a hospital, assuming that certain services are available, and finds out at a time of need that they aren’t. That’s exactly what happened in Gilroy when a woman who had planned on a tubal ligation was told, at the last minute, ‘Whoops, sorry, we don’t do that anymore. ‘”

Although most court cases have focused on the limitations on reproductive health services, care for the dying may well be the next controversial issue.

What the guidelines don’t spell out could be as important as what they do say. Physician-assisted suicide, only legal in the U.S. in the state of Oregon, is explicitly prohibited (as are all forms of suicide in Catholic teaching). The Oregon law allows doctors to prescribe — but not administer — lethal drugs for terminally ill patients who request them, and whose cases have been extensively reviewed by other medical authorities.

The bishops’ directives are silent on the increasingly common practice of living wills, in which healthy people spell out what type of medical care they want, if any, should they become incompetent to make on-the-spot medical decisions during a terminal illness.

Such wills frequently have provisos forbidding medical institutions to use extraordinary measures — from putting a comatose patient on an artificial respirator to providing nutrition and hydration through a tube — if there is no reasonable hope of recovery.

While Catholic doctrine does not require doctors to use extraordinary means to preserve life, the Church has not yet ruled on whether artificial nutrition and hydration is considered ordinary or extraordinary.

The absence of clear guidelines, according to MergerWatch’s Uttley, raises the possibility that a patient’s written wishes might be disregarded if the bishops decide that discontinuing nutrition and hydration is contrary to Catholic teaching.

In fact, Lindenberg became an activist in the St. Petersburg lawsuit against Bayfront not after her abortion but when, in a completely unrelated incident, she was asked to sign a document revoking any living wills before receiving physical therapy after knee surgery.

One of the most recent successful challenges to a merger occurred in Oregon, where voters, by approving the state’s physician-assisted suicide law, showed that they place a high priority on the expressed wishes of terminally ill patients.

“Whether you’re talking about reproductive health care or care at the end of life, the church-state issue is very clear,” says Elana M. Cohen, senior counsel for the National Women’s Law Center in Washington, DC. “We all have a right to make medical decisions guided by our own ethical and religious convictions and traditions — not someone else’s.”

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