Developing Public Policy for Sectarian Providers: Accommodating Religious Beliefs and Obtaining Access to Care

I have more fully developed many of the ideas in this paper in Boozang K.M. , “Deciding the Fate of Religious Hospitals in the Emerging Health Care Market,” Houston Law Review, 31 (1995): 1429–516. See also Besley M.D. , “The Vatican Merger Defense—Should Two Catholic Hospitals Seeking to Merge be Considered a Single Entity for Purposes of Antitrust Merger Analysis?,” Northwestern Law Review, 90 (1996): 720–86.

Catholic health care systems include almost 600 hospitals, 1,000 long-term care facilities, 57 multi-institutional systems, and 425 sponsors. Fonner E. Tang B. , “Six Challenges Facing Catholic Health Care Marketing,” Journal of Health Care Marketing, 15 (1995): 13–20. The largest non-Catholic health care systems include the Adventist Health Systems and several Baptist-affiliated systems. Greene J. Lutz S. , “Systems Post 4th Straight Year of Income Growth,” Modem Healthcare, 24, no. 21 (1994): At 36, 40. Mergers between Baptist and nonsectarian hospitals raise some of the same secular concerns that Catholic mergers do. See, for example, Nelson T. , “Risk to Women,” Atlanta Journal and Constitution, July 22, 1995, at A19. The American Protestant Hospital Association is comprised of over 500 hospitals, most of which were established by Evangelicals. Sweet LI , Health and Medicine in the Evangelical Tradition: Not by Might or Power (Valley Forge: Trinity Press International, 1994): At 139.

See generally, Van Duch D. , “Church, Earthly Realms Clash on Hospitals,” National Law Journal. 18 (1996) at A12.

McCormick R. , “The Catholic Hospital Today: Mission Impossible?,” Origins, 24 (1995): 648–53.

National Coalition on Catholic Health Care Ministry, “Contemporary Challenges and Opportunities for Church Ministry,” Catholic Health Ministry in Transition: A Handbook for Responsible Leadership (Silver Spring: National Coalition on Catholic Health Care Ministry, 1995): At 12.

Catholic Health Association of the United States, “How to Approach Catholic Identity in Changing Times,” Health Progress, 75, no. 3 (1994): 23–29. The United States Catholic Conference has discussed the identity of Catholic health facilities in terms of providing personalized patient care through collaboration of the medical staff and pastoral care staff, adhering to particular moral stances in the delivery of health care, fulfilling the prophetic role of promoting Christian values, and honoring the rights and responsibilities of employers and employees. Committee on Domestic Social Policy of the United States Catholic Conference, Health and Health Care: A Pastoral Letter of American Catholic Bishops (Washington, D.C.: United States Catholic Conference, 1982): At 7–12.

Tokarski C. , “For Whom the Church Bell Tolls; Mergers Between Catholic and non-Catholic Health Systems,” Hospital & Health Networks, 69 (1995): At 41.

Catholic facilities across the nation have been confronting these difficult questions. Reportedly, [s]ince 1990, according to data from the Catholic Hospital Association, 39 Catholic hospitals were sold and no longer retain their religious identity; five others merged with other institutions and are no longer Catholic; three merged with other Catholic hospitals; and four merged with non-Catholic hospitals where the resulting institution remains Catholic. A dozen Catholic hospitals have shut their doors altogether. See Tokarski , supra note 7, at 41. See generally, MacPherson P. , “Church & Fate,” Hospitals & Health Networks, Mar. 20, 1996, at 33–36.

In this context, the term scandal refers to the possibility of generating confusion about Catholic moral teaching. Committee on Doctrine of the National Conference of Catholic Bishops, Ethical & Religious Directives for Catholic Health Care Services (Washington, D.C.: United States Catholic Conference, 1995): At 27, Directive 70.

The National Conference of Catholic Bishops most recently revised the Ethical and Religious Directives in November 1994.

Much of this discussion relies on Brodeur D. , What's the Role of Catholic Health Care Institutions and the Local Church in a Reformed Care Environment vs. The Church's Ministry of Health Care, Fifth Annual Connery Lecture, Chicago, Illinois, OCT. 26, 1994 (on file with the author).

See generally, Catholic Health Association, Physician-Hospital Joint Ventures: Ethical Issues (St. Louis: Catholic Health Association of the United States, 1991).

The American Civil Liberties Union (ACLU) dedicated the October 1995 edition of its Reproductive Freedom Project's Reproductive Rights Update to ACLU activities throughout the United States monitoring and challenging religious hospital mergers that threaten availability of reproductive health services. On June 19, 1996, Family Planning Advocates of New York State unveiled a program called MergerWatch to track mergers between Catholic and non-Catholic health care institutions. The group seeks to protect the availability of reproductive health care services. “Family Planning Group Eyes Activities of Catholic, ‘Non-Catholic Institutions’,” Health Law Reporter (BNA), No. 5, at 995–96 (June 27, 1996).

Complaint in Amelia E. v. Public Health Council, No. 7062–94 (N.Y. Super. Ct. 1995) (unpublished, on file with the author).

The case was settled on May 9, 1996, when the Seton Health System, Inc. and the New York State Department of Health entered a Memorandum of Understanding, dated May 9, 1996 (memorandum on file with the author).

In 1993, the year prior to the merger, St. Mary's, a 201-bed hospital with a $36 million budget, lost about $500,000; the 143-bed Leonard Hospital closed the year with a $378,000 surplus on its $34 million budget. R. Karlin, “Two Troy Hospitals to be Pan of Seton Health System,” Times Union, June 2, 1994, at B10. Following the merger, Seton Health System showed a $1.4 million excess of revenues. Aurentz T. , “Hospital Results Improve, But Officials Wary of Future,” Capital District Business Review, 22, no. 9 (1995): At 1. In July 1995, Seton converted Leonard Hospital into an urgent care center, closing its emergency room and transferring its acute care beds to the St. Mary's facility. Aurentz T. , “Providers Lining Up Partners,” Capital District Business Review, 22, no. 17 (1995): At 1.

The complaint focuses particular attention on the preclusive effect the Ethical and Religious Directives would have on physicians' ability to initiate family planning discussions with women for whom pregnancy may be medically contraindicated. Complaint in Amelia E., No. 7062–94, at 7 n.7.

Plaintiffs argue that even if these alternatives were sufficient, they would only address patients who requested contraceptive services; they would not suffice for situations in which the standard of care would include family planning discussions. Id. at 23.

See id. at 28 (citing N.Y. Comp. Codes R. & Regs. tit. 10, § 405.21).

Id. at 31 (citing N.Y. Comp. Codes R. & Regs. tit. 10, §§ 405.7(b)(9), 405.7(b)(15)).

Id. at 29 (citing N.Y. Educ. Law § 6530(30)).

Id. at 35, 35 n.:9 (citing 42 U.S.C. § 1396d(a)(4); and 42 C.F.R. §§ 440.230(c), 441.61(a)).

Id. at 35 n.19 (citing N.Y. Soc. Serv. Law § 364-j(1)(c)).

St. Agnes Hospital v. Riddick, 748 F. Supp. 319 (D.C. Md. 1990).

Battling v. Glendale Adventist Medical Center, 209 Cal. Rptr. 220 (Ct. App. 1984) (Christian pro-life hospital compelled to discontinue ventilator treatment); In re Requena, 517 A.2d 886, 893 (N.J. Super. Ct. Ch. Div.), aff'd, 517 A.2d 869 (N.J. Super. Ct. App. Div. 1986) (Catholic hospital ordered to terminate nutrition and hydration despite being contrary to institutional policy).

Navarro M. , “Ethics of Giving AIDS Advice Troubles Catholic Hospitals,” New York Times, Jan. 3, 1993, at A1, A24 (recounting the New York Archdiocese's rejection of counseling guidelines in Catholic nursing homes' application to accept residents with AIDS).

Hinz G. , “There's Got to be a ‘Morning After’: A City Law Requires Even Catholic Hospitals to Offer Rape Victims the Pill,” Chicago Tribune, Jan. 1994, at 20; and Hirsley M. , “Bishop Reignites Ethics Struggle; Catholic Hospital Told to Deny Morning-After Pill to Victims of Rape,” Chicago Tribune, Feb. 25, 1994, at 1. See also Brownfield v. Daniel Freeman Marina Hospital, 256 Cal. Rptr. 240 (Ct. App. 1989) (suggesting that rape victim damaged by hospital's refusal of or referral for post-coital contraception may have a medical malpractice claim).

Public Health Service Act, 42 U.S.C. § 300a-7 (1988) (the “Church Amendment”).

U.S. Const. amend. 1.

Religious Freedom Restoration Act, 42 U.S.C.A. § 2000bb (West 1996).

The statutory language of the state conscience clauses varies greatly. For the most pan, however, the statutes indicate that an individual who states in writing her objections to participating in an abortion shall not be required to so participate. Some statutes refer to objections made on religious or moral grounds. See, for example, Ga. Code Ann. § 16-12-142 (1995); and Ind. Code Ann. § 16-34-1-4 (Burns 1996). Others require the statement merely to indicate that the procedure violates the individual's conscience. Sec, for example, Ill. Ann. Stat. ch. 720, para. 510/13 (Smith-Hurd 1996).

See, for example, Ky. Rev. Stat. Ann. § 311.800(5)(a) (Michie/Bobbs-Merrill 1995); Pa. Stat. Ann. tit. 43, § 955.2(b)(1) (1995); and Wis. Stat. § 253.09(4) (1994).

Ky. Rev. Stat. Ann. § 311.800(5)(a) (Michie/Bobbs-Merrill 1995). The Pennsylvania statute is identical, except that it also applies to the performance of sterilizations. Pa. Star. Ann. tit. 43, § 955.2(b)(1) (1995). The Wisconsin statute provides that The receipt of any grant, contract, loan or loan guarantee under any state or federal law does not authorize any court or any public official or other public authority to require: … (b) Such entity to: 1. Make its facilities available for the performance of any sterilization procedure or removal of a human embryo or fetus if the performance of such a procedure in such facilities is prohibited by the entity on the basis of religious beliefs or moral convictions. Wis. Stat. § 253.09(4) (1994).

See, for example, Ind. Code Ann. § 16-34-1-4 (Burns 1996); Iowa Code § 146.1 (1995); Mass. Ann. Laws ch. 112, § 121 (Law. Co-op. 1996); Mich. Stat. Ann. § 14.15 (Callahan 1995); and R.I. Gen. Laws § 23-17-11 (1995).

See, for example, Ariz. Rev. Stat. Ann. § 36–2151 (1995); Cal. Health & Safety Code § 123420 (Deering 1995); Ga. Code Ann. § 16-12-142 (1995); Ill. Ann. Stat. ch. 720, para. 510/13 (Smith-Hurd 1996); Ind. Code Ann. § 16-34-1-4 (Burns 1996); Iowa Code § 146.1 (1995); Mich. Stat. Ann. § 14.15 (Callahan 1995); Mo. Rev. Stat. § 197.032 (1995); and Utah Code Ann. § 76-7-306 (1995).

Language in the Kentucky and the Pennsylvania statutes that protects an objecting individual from having to cooperate in an abortion may encompass referrals. Ky. Rev. Stat. Ann. § 311.800(4) (Michie/Bobbs-Merrill 1995); and Pa. Stat. Ann. tit. 43, § 955.2(a) (1995). Otherwise, the statutes protecting facilities from having to “admit” or “treat” a patient seeking an abortion would not appear to include referrals.

Nevada's conscience clause does not apply to medical emergency situations. Nev. Rev. Stat. Ann. § 632.475.3 (Michie 1995). It is not clear whether this exception would extend to a rape victim's request for a morning-after pill.

A small minority of states do allow institutions to refuse to perform sterilizations. Sec, for example, Pa. Stat. Ann. tit. 43, § 955.2 (1995); and Wis. Stat. § 253.09(1) (1994).

For a survey of advance directive laws exempting providers from participation in end-of-life treatment to which they object, see Boozang , supra note 1, at 1454 n.100.

See, for example, Alaska Stat. § 18.12.050 (1995); Colo. Rev. Stat. Ann. § 15-14-507 (West 1996); Ill. Ann. Stat. ch. 755, para. 40/35 (Smith-Hurd 1996); Iowa Code Ann. § 144A.8 (West 1996); Mo. Ann. Stat. § 459.030 (Vernon 1995); N.J. Stat. Ann. §§ 26:2H-65, 26:2H-69 (West 1996); and 20 Pa. Cons. Stat. Ann. § 5409 (1996).

See, for example, Ala. Code 22-8A-8 (1995); Ga. Code Ann. § 31-32-8(b) (1995); Haw. Rev. Stat. § 327D-11 (1995); Idaho Code § 39-4508 (1995); N.H. Rev. Stat. Ann. § 137-H:6 (Supp. 1995); and N.M. Stat. Ann. § 24-7-5(B) (Michie 1995).

For example, Cal. Health & Safety Code § 7190 (West 1996); Conn. Gen. Stat. Ann. § 19a-580a (West 1996); and Nev. Rev. Stat. Ann. § 449.628 ( Michie 1993).

See, for example, Bartling v. Glendale Adventist Medical Or., 209 Cal. Rptr. 220 (Ct. App. 1984); In re Requena, 517 A.2d 886 (N.J. Super. Ct. Ch. Div. 1986); and Boozang , supra note 1, at 1456–62.

U.S. Const. amend. I.

Grossman E. Carmella A. , “The RFRA Revision of the Free Exercise Clause,” Ohio State Law Journal, 65 (1996): At 76–77.

Employment Division v. Smith, 494 U.S. 872 (1990).

Religious Freedom Restoration Act, 42 U.S.C.A. § 2000bb (West 1996).

See, for example, In re Young, No. 93-2267, 1996 U.S. App. LEXIS 10246, at *41 (8th Cir. May 6, 1996) ( Bogue J. dissenting) (referring to RFRA's “dubious constitutionality”); Hamilton v. Schriro, 74 F.3d 1545, 1562 passim (8th Cir. 1996) ( McMillan J. , dissenting) (arguing that RFRA is unconstitutional); Bybee J.S. , “Taking Liberties with the First Amendment: Congress, Section 5, and the Religious Freedom Restoration Act,” Vanderbilt Law Review, 48 (1995): 1539–633 (arguing that RFRA is unconstitutional); and Gressman Carmella , supra note 46, at 119 passim (contending that RFRA violates the separation of powers doctrine). But see Flores v. Texas, 73 F.3d 1352 (5th Cir. 1996) (reversing a lower court decision declaring RFRA unconstitutional); and In re Young, No. 93-2267, at *27 (suggesting that the Eighth Circuit has implicitly concluded that RFRA is constitutional).

42 U.S.C.A. § 2000bb-1(a) (West 1996).

Thiry v. Carlson, No. 95-3178, 1996 U.S. App. LEXIS 4536 at *7 (10th Cir. Mar. 15, 1996).

Bryant v. Gomez, 46 F.3d 948, 949 (9th Cir. 1995).

See, for example, Abdur-Rahman v. Michigan Department of Corrections, 65 F.3d 489, 492 (6th Cir. 1995); Werner v. McCotter, 49 F.3d 1476, 1480 (10th Cir.), cert. denied, 115 S. Ct. 2625 (1995); and Cheffer v. Reno, 55 F.3d 1517, 1522 (11th Cir. 1995).

See, for example, Mack v. O'Leary, No. 95-1331, 1996 U.S. App. LEXIS 6267 at *8 (7th Cir. Apr. 3, 1996); and In re Young, No. 93-2267, 1996 U.S. App. LEXIS 10246 at *30 (8th Cir. May 6, 1996).

Goodall v. Stafford County School Board, 60 F.3d 168, 171 (4th Cir. 1995); Brown-El v. Harris, 26 F.3d 68, 69 (8th Cir. 1994); and Bryant, 46 F.3d at 949.

See, for example, Mack, No. 95-1331, at *8; and Thiry v. Carlson, No. 95-3178, 1996 U.S. App. LEXIS 4536 at *9 (10th Cir. Mar. 15, 1996).

Directive 36 allows the provision of post-coital contraception to victims of sexual assault if no evidence of conception exists. Committee on Doctrine of the National Conference of Catholic Bishops, supra note 9, at 16, Directive 36.

See, for example, Chicago, Ill., Mun. Code § 4-84-240 (1990).

Religious Freedom Restoration Act, 42 U.S.C.A. § 2000bb-1(b)(1)-(2) (West 1994).

See generally, McConnell M.W. , “Free Exercise Revisionism and the Smith Decision,” University of Chicago Law Review, 57 (1990): At 1109–10.

The congressional findings section of RFRA specifically states that “the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.” 42 U.S.C.A. § 2000bb(a)(5) (West 1996).

Some RFRA cases look to post-Smith establishment cases, which describe the compelling governmental interests as “‘interests of the highest order”’ but indicate that pre-Smith case law is instructive or helpful. See, for example, In re Young, No. 93-2267, 1996 U.S. App. LEXIS 10246 at *33 (8th Cir. May 6, 1996); and Grosz v. Miami Beach, No. 94-5114, 1996 U.S. App. LEXIS 10834 at *5 (11th Cir. May 9, 1996).

Wardle L.D. , “Protecting the Rights of Conscience of Health Care Providers,” Journal of Legal Medicine, 14 (1993): 177–230.

Id. at 229.

Social Security ACT, 42 U.S.C.A § 1396d(a)(xi)(4) (West 1996).

Currently, such differences exist among the states; New Jersey Medicaid includes coverage for abortions, Right to Choose v. Bryne, 450 A.2d 925 (N.J. 1982), while Missouri excludes such coverage, Mo. Ann. Stat. § 208.152 (Vernon 1996).

The new section, entitled “Forming New Partnerships with Health Care Organizations and Providers,” states that “Diocesan bishops and other church authorities should be involved as [partnerships with non-Catholic entities] are developed, and the diocesan bishop should give the appropriate authorization before they arc completed.” Committee on Doctrine of the National Conference of Catholic Bishops, supra note 9, at pt. 6.

Morrissey J. , “Boston Catholic Hospital on Market,” Modern Healthcare, June 10, 1996, at 16.

The possibility exists that such an approach would provide a First Amendment Establishment Clause challenge. A New Jersey court recently declared unconstitutional that state's statutory exception from its certificate of need law for sectarian nursing homes. New Jersey Ass'n of Health Care Facilities v. New Jersey Dep't Health, 665 A.2d 399 (N.J. Super. Ct. 1995). The court held, first, that “[t]he secular goal of health care undermines the State's contention that the providing of health services by religious entities is somehow an exclusively religious concern with which the State should seek to minimize or eradicate its involvement.” Id. at 402. Second, the court held that the exemption afforded religious providers gives a competitive advantage that directly advanced religion. Id. Finally, the court held that “[b]y limiting its application to nursing homes connected with ‘a well established religious body or denomination,’ the statute has drawn a distinction favoring some religious organizations over others.” Id. at 403.

See Memorandum of Understanding, supra note 15, at paras. 4, 6, 7. Other Catholic providers have similarly agreed to offer or provide direct referrals for certain care, such as contraceptive services. See generally, Lewin , supra note 7, at B7.

Lewin , supra note 7, at B7. See also Mjoseth J. , “State AG Conditionally Approves Merger of Great Falls Hospitals,” Health Law Reporter (BNA), No. 5, at 372 (Mar. 14, 1996) (consolidated hospital will discontinue abortion services but will deed office space to Planned Parenthood, the revenue from which will pay nonmedical expenses of women who must travel to obtain abortions).

See Rev. Smith R.F. , Pope John Center, “The Principles of Cooperation and Their Application to the Present State of Health Care Evolution,” in Catholic Health Ministry in Transition: A Handbook for Responsible Leadership (Silver Spring: National Coalition on Catholic Health Care Ministry, 1995): At 4.

Id. at 4–5. “Catholic providers can participate in such affiliations if there is a serious reason or moral necessity, if the cooperation is mediate material, and if scandal can be avoided.” Id. at 4.

Catholic Health Association, supra note 12, at 13. Cf. id. at 31–32.

See, for example, Smith , supra note 72, at 5. See also Catholic Health Association, supra note 12, at 22.

Smith , supra note 72, at 5.