The author proposes an ethics audit of Catholic sterilization policies as a way to correct the disparity between the regnant moral directive prohibiting direct sterilization in Catholic health-care facilities and the policy and practice of allowing tubal ligations for “medical” or “therapeutic” purposes. The proposed four-step plan for the ethics audit involves dialogue and collaboration between U.S. bishops who have Catholic health-care facilities in their dioceses and the respective hospitals’ administration, sponsors, and medical staff. First, bishops clarify for Catholic hospital administrators, sponsors, and system leadership the moral distinction between a direct sterilization and one that is therapeutic or indirect. Second, bishops instruct hospital CEOs to abide by directive 53 of the Ethical and Religious Directives for Catholic Health Care Services by providing only indirect sterilizations. Third, bishops encourage hospital leadership and medical/nursing staff to promote directive 53 in tandem with directive 52 and its call for providing natural family planning services within the hospital. And, fourth, bishops collaborate with the hospital or system leadership in conducting ongoing oversight of sterilization policy/procedures to insure that their Catholic health-care institutions practice durable compliance with directives 52 and 53.
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References
1.
In an Our Sunday Visitor interview, Dr. Haas made the point that, given the widespread misinterpretation of directive 53 amongst physicians, patients, and moralists, Catholic sterilization policies need to be audited: “Hospitals already have medical audits and financial audits, and they should have ethics audits, too.” (Ann Carey, “Shocking Lack of Understanding,” Our Sunday Visitor, July 13, 2008, 12.) In a similar vein, the Milwaukee Guild of the Catholic Medical Association has called for Catholic hospitals to conform to a “checklist” of procedures/attitudes/values defining their Catholic identity (Milwaukee Guild, “Checklist for Catholic Hospitals,” Linacre Quarterly 74 [2007]: 159-163). Unfortunately, in the list of procedures that ought not be a part of Catholic health-care services, the guild fails to specify the moral difference between direct contraception and sterilization, e.g., and their indirect forms. Furthermore, the idea of “checking” compliance with all the Ethical and Religious Directives for Catholic Health Care Services (ERDs) seems to be left up to the honor system—every CEO, if you will, checking his hospital's compliance on his own initiative and good will. As such, the guild's seminal idea of doing, what I would call, an informal ethics audit lacks teeth and a reasonable executive plan. Having said that, it is clear that guild members wrote the article to address what they saw to be a problem: reality on the ground in our Catholic hospitals does not always match the Catholic mission as presented theoretically in the ERDs. (Cf, too, the conclusion of the authors of the Catholic Medical Association's “Report of the Task Force on Ethical and Religious Directives,” Linacre Quarterly 72 [2005], 184: “All were of the opinion that to allow practices such as sterilization on the premises of Catholic hospitals would compromise the legal protection provided by the ERDs in contesting efforts to force Catholic institutions to participate in abortion or other life-terminating procedures.”) Is every Catholic hospital guilty of compromising one or more ethical requirement of the ERDs, particularly directive 53? Certainly not. I know of an entire health system (OSF Healthcare, Peoria, IL) whose member institutions are, according to its ethicist, Joseph Piccione, in compliance with directive 53; they do not offer tubal ligations or vasectomies for any reason. But I also know this: Based on the hundreds of ethics consults on sterilization I have had in the past thirteen years with physicians working in Catholic hospitals across the U.S., OSF Healthcare's sterilization policy/procedures is the exception, not the rule.
2.
The audit of sterilization policies described here would be one segment of a comprehensive ethics audit that monitors a Catholic hospital's compliance with all seventy-two of the ERDs. The entire audit would evaluate how the hospital deals with beginning-of-life and end-of-life questions, merger situations, and the social and spiritual responsibilities of its services.
3.
The ERDs also apply to physicians not employed by the Catholic hospital but who request privileges to practice within in it. As directive 5 states: “Catholic health-care services must adopt these Directives as policy, require adherence to them within the institution as a condition for medical privileges and employment, and provide appropriate instruction regarding the Directives for administration, medical and nursing staff, and other personnel.”
All hospitals in Texas, except for rural institutions, must submit data on all inpatient discharges to the Texas Health Care Information Collection Center for Health Statistics. The Texas legislature requires the Center to collect quarterly utilization data including diagnoses, procedures, and outcome for all patients in order to promote cost-effective, quality health care. Hospitals assign unique patient and physician identifiers so that records may be submitted without violating patient and physician confidentiality. The data is compiled quarterly into public-use data files, in this case, into the Texas Public Use Data File (TPUDF) that may be purchased for research or analytical purposes. When the TPUDF was analyzed to track tubal ligations in Texas Catholic hospitals, it was simple to calculate total numbers in each hospital, since the TPUDF utilize ICD-9-CM (International Classification of Diseases, Ninth Revision, Clinical Modification) codes where the diagnosis of “sterilization for contraceptive purposes” is designated by code V25.2 and the procedure of tubal ligation by treatment code 66.32 and variations according to different tubal-ligation methods by treatment codes 66.2x and 66.3x.
6.
Twenty-three hospitals had explicit violations of the ERDs; nine more had potential violations. seven hospitals did not provide sterilizations, but five of those did not provide ob/gyn services. One hospital was not required to report to the state.
7.
The local ordinary could use traditional means of ethics training, viz., through lectures, conferences, panels, etc. In addition, and as a way to guarantee that everyone who should be instructed really understands Catholic values and their application within health care, the bishop could also rely on a computer-based training program developed by an organization such as the Catholic Health Association or the National Catholic Bioethics Center and approved by the United States Conference of Catholic Bishops (USCCB). Included within various modules of the computer-based training for the ethics audit would be the appropriate background on pertinent ethics principles and their application within the areas of health care outlined in the ERDs. The health-care professional attempting to complete a computer-based training program dealing with key ethical values and their applications would be certified only after passing built-in quizzes that test adequate comprehension of the material presented. A good format model for computer-based training for an ethics audit is a program developed by HCS Incorporated to assist health-care providers in understanding the rules and regulations for HIPAA compliance.
8.
USCCB, Ethical and Religious Directives for Catholic Health Care Services, 4th ed. (Washington, D.C.: USCCB, 2001), is a collection of guidelines drawn up by the United States Conference of Catholic Bishops that explains pertinent Catholic medical-moral principles and values and applies them to clinical practice within Catholic health-care institutions. Directive 53, for example, applies the principle of double effect and its indirect/direct distinction to sterilization procedures. The description of the ERDs included in the 4th edition is instructive: “This fourth edition of the Ethical and Religious Directives for Catholic Health Care Services was developed by the Committee on Doctrine of the National Conference of Catholic Bishops and approved as the national code by the full body of bishops at its June 2001 general meeting. This edition of the Directives which replaces all previous editions is recommended for implementation by the diocesan bishop and is authorized for publication by the undersigned.” The Directives are intended to inform sponsor institutions, administrators, chaplains, health-care personnel, patients, and residents.
9.
A revision of the second sentence of directive 53 might make the indirect distinction more clear: Procedures are permitted when 1) their direct effect is the cure or alleviation of a present and serious pathology; 2) their indirect effect is sterility; and 3) a simpler treatment is not available.
10.
Since a vasectomy is the only other procedure that is directly sterilizing, it is reasonable to imply that this was also a concern for Bishop Corrada and one that should have been prohibited within the Catholic health-care facilities under his jurisdiction. However, according to data submitted to TPUDF by Trinity Mother Frances and St. Michael hospitals between 2000 and 2003, no vasectomies were provided.
11.
From my consultations with physicians working in Catholic health-care facilities across America, I am convinced that the near-universal misunderstanding of directive 53 is not malicious. After some thirty years of acting on a misinterpretation that imposes little restriction on performing tubal ligations, Ob/gyns in Catholic settings were and are only too happy to perform only “medically indicated” sterilizations. Now many of these practitioners embrace and tenaciously defend the notion of so-called therapeutic or indirect sterilizations with a certain righteousness, illustrated in the comments from Trinity Mother Frances hospital representatives: theirs is a “good faith” interpretation of directive 53. Another way of viewing the issue of whether to allow contraception/sterilization within Catholic hospitals helps to account for the widespread disregard for directives 52 and 53 and, further, why many CEOs and practitioners claim their dissent represents the high moral ground. Father Kevin McMahon summarizes this perspective by identifying fifteen themes articulated by the Catholic Health Association in 2001 when the bishops were discussing revisions to the 1994 Directives, revisions that involved discussion of whether allowing direct sterilizations would be unjustifiable cooperation in evil on the part of the health-care institution. The Catholic Health Association made the case for allowing direct sterilizations in Catholic health-care facilities either by appeal to legitimate cooperation in evil or the principle of the lesser evil. Their essential message to the bishops was this: Catholic hospitals should allow contraception and sterilization—practices that are not considered immoral by many inside and outside of the Roman Catholic Church—for the sake of the greater good of preserving Catholic presence in health care and especially in obstetrics and gynecology (both in Catholic sole-provider hospitals and in partnerships of Catholic and non-Catholic health-care institutions). Only this approach will enable Catholic health-care institutions to resist the greater evil of abortion and to carry on the mission of healing in the name of Jesus so needed in our anti-life society. Commenting on the proposed revisions, McMahon concludes, and I believe, correctly that “the process underway to revise the ERDs ‘94 [resulting in the current fourth edition quoted here] is a new opportunity to accomplish this illusive objective [eliminating the unjustifiable cooperation of Catholic entities in direct sterilization]. This author believes that the mistakes of the past which have permitted unjustifiable cooperation to continue are well on the way to correction as the ERDs ‘94 are revised.” (McMahon, “Revising the ERDs'94: Goals, Opposition and Resolution,” Linacre Quarterly 68 [2001]: 101-123.) For a good summary of the debate about whether duress in the marketplace counts as justification for a Catholic hospital's cooperation in the evil of sterilization and contraception, see a series of articles in the Linacre Quarterly between James F. Keenan, S.J., and Lawrence J. Welch. (Keenan, “Institutional Cooperation and the Ethical and Religious Directives” Linacre Quarterly 64.3 [August 1997]: 53-76; Welch, “An Excessive Claim: Sterilization and Immediate Material Cooperation” Linacre Quarterly 66.4 [November 1999]: 4-25; Keenan, “Not an Excessive Claim, Nor a Divisive One, But a Traditional One: A Response to Lawrence Welch on Immediate Material Cooperation,” Linacre Quarterly 67.4 [November 2000]: 83-88.) Health Progress also dedicated several articles of its November/December 2002 issue (83.6) to the topic of sterilization and cooperation. Kevin O'Rourke, O.P., argues, in “Catholic Health Care and Sterilization” (pp. 43-48, 60), that “the most common and clear-cut method of ensuring that cooperation between Catholic and non-Catholic facilities is ethically acceptable is to have direct sterilization and other prohibited procedures performed by a separate entity.” If possible, these sterilizations should take place “at a facility physically separate from both hospitals.” But under the right circumstances, it would be possible to perform direct sterilizations within a specially designated section of the Catholic hospital campus. In the latter case, though, serious reasons for the situation would need to be present: First, it might not be possible (for financial reasons, say) to construct another hospital. Second, to avoid formal participation, all personnel performing the prohibited procedures would have to be employed and managed by the third party. Third, the diocesan bishop would have to determine that scandal would not arise from the arrangement.” Peter Cataldo and John Haas, in “Institutional Cooperation: The ERDs” (pp. 49-57, 60), caution that “viewing the principle of cooperation as a creative source of morally obligated action reconfigures the principle into a moral mandate to cooperate.” Such an approach could lead to illegitimate institutional cooperation such as “immediate material cooperation by an institution in direct sterilizations for the sake of a collaborative arrangement.”
12.
EWTN News, “Texas Catholic Hospitals Challenge Bishop: Announce Plans to Continue Sterilizations,” December 16, 2008 (Catholic World News Brief), http://www.ewtn.com/vnews/getstory.asp?number=92682. Trinity Mother Frances, in a public statement released on April 2, 2009, made it known that no direct sterilizations would be provided through the hospital in the future: “In 2003, Trinity Mother Frances Health System, in good faith, relied upon a misinterpretation of Church teaching and specifically pertinent elements of the Ethical and Religious Directives for Catholic Health Services in the United States (ERDs). In subsequent years as the authentic teaching of the Magisterium was clarified for the Health System, direct sterilizations decreased and have ceased. Trinity Mother Frances Health System regrets any confusion about Catholic teaching on this topic that might have resulted. Measures are in place to ensure that going forward no direct sterilization will occur.”
13.
Cf. the Catholic Medical Association and the National Catholic Bioethics Center, “A Catholic Guide to Ethical Clinical Research,”Linacre Quarterly75 (2008): 191.
14.
Doctors frequently suggest a tubal ligation at the time of delivery for a woman with a history of repeat c-sections in order to avoid maternal and/or fetal catastrophic complications that could occur should the woman become pregnant in the future. This scenario underscores the point that the disease is not present at the time of the tubal and may not occur at all should the woman become pregnant in the future. The sole effect of the tubal ligation is sterility.
15.
Some of the conditions or pathologies that may be brought on or exacerbated by pregnancy and that comprise the medical reasons for which many Catholic hospital policies justify tubal ligations include: significant risk of uterine rupture or additional anesthesia; Rh incompatibility or other blood factors; psychiatric disorders; neurologic disorders (e.g., partially repaired aneurysm); auto immune disorders; endometriosis; clotting disorder; seizure disorder; neoplastic disease; advanced maternal age; obesity; anemia; asthma; cardiac diseases; diabetes; hypertension.
16.
Indirect or therapeutic sterilization brought on by surgical removal of organs always involves excision of pathologically diseased reproductive organs—uterus, fallopian tubes, ovaries. The removal of the uterus from a woman suffering from uterine cancer, for example, is therapeutic because it prevents the woman's death. Applying the hysterectomy model to tubal ligation, we would have to demonstrate that the fallopian tubes are diseased and that ligation or blocking of the tubes would be a cure for that disease.
17.
Congregation for the Doctrine of the Faith, Quaecumque sterilizatio, n. 1, emphasis added.
18.
National Conference of Catholic Bishops, (1977), emphasis added.
19.
Congregation for the Doctrine of the Faith, Quaecumque sterilizatio, n. 3a.
20.
USCCB, Ethical and Religious Directives, 6.
21.
There is no reference in the 1983 Code of Canon Law to health care and its various institutions. However, since Catholic health care is an apostolic activity, canon 394, n. 1, would apply (the diocesan bishop should be involved in its apostolic work) and, more directly, the norms relating to temporal goods would apply (a Catholic hospital would qualify as a public juridic person, and its goods those of a public juridic person). Therefore, Catholic health-care institutions, under the jurisdiction of the diocesan bishop, do not exist per se but to spread the gospel and to nourish the faith of people of good will. If these health-care facilities cannot fulfill their apostolic end, they should be reformed. If they are incapable of reform, or will not reform, or will not refrain from illegitimate cooperation in evil, the bishop has the authority to strip the institution of its Catholic title.
22.
The common teaching of Christians, until contemporary times, was that contraception is immoral. From the teachings of the Talmud to Paul's Letter to the Galatians (5: 19-21), from Justin Martyr of the second century to Clement of Alexandria of the third century, from St. Augustine in the fifth century to Pope Pius XI in the nineteenth century, from Pope Paul VI and his teaching in the twentieth-century encyclical Humanae vitae to John Paul II and his many reflections on the theology of the body, there is a coherent Catholic teaching concerning the nature of marriage, marital love, and marital intercourse. Humanae vitae summed up this teaching when it addressed the kinds of acts that ought to be avoided by a moral person: those of direct sterilization, whether perpetual or temporary, whether of the man or of the woman.
23.
The Creighton Model FertilityCare System is a natural method of family planning designed to be integrated into hospital ob/gyn departments. For more information on setting up such a center, contact the Pope Paul VI Institute, Omaha, Nebraska. To those who insist that natural methods of avoiding pregnancy do not work, it is wise to remember that no method of contraception is 100 percent effective in avoiding a pregnancy, including tubal ligation. Pregnancy statistics following tubal ligations range from 0.75 percent to 5.4 percent depending on the method employed (Robert D. Hilgers, “Risk of Pregnancy After Tubal Ligation,” ACOG review [September/October 1996]: 6). The 5.4 percent risk of pregnancy following one method of doing a tubal ligation or its 94.6 percent effectiveness rate in preventing pregnancy compares favorably with that from a meta-analysis of Creighton Model FertilityCare System involving 1,876 couples over 17,310 couple-months of use. The latter study documents that the Creighton System method effectiveness rates for avoiding pregnancy were 99.5 percent at the twelfth ordinal month and 99.5 percent at the eighteenth ordinal month. The user effectiveness rates for avoiding a pregnancy were 96.8 percent at the twelfth ordinal month and 96.4 percent at the eighteenth ordinal month. (Thomas. W. Hilgers and Joseph B. Stanford, “Creighton Model NaProEducation Technology for Avoiding Pregnancy,” Journal of Reproductive Medicine 43 [1998]: 495-502.)
24.
USCCB, Ethical and Religious Directives, 4.
25.
For example, the National Catholic Bioethics Center, the Catholic Medical Association, or the Catholic Health Association.
26.
The position of an ethics compliance officer would assist the system and institutional ethicist to carry out their work, particularly in respect to implementation of the ethics audit.
