Will Charity Laws Close Catholic Hospitals?

This past June, the U.S. bishops tightened up the ethical guidelines that govern the operation of Catholic health facilities around the country. The revised guidelines require Catholic hospitals to place greater distance between themselves and the affiliate organizations offering sterilization services. A new directive (No. 70) reads: Catholic health care organizations are not permitted to engage in immediate material cooperation in actions that are intrinsically evil, such as abortion, euthanasia, and direct sterilization.

Compliance with the new directives by some 1,140 health care facilities is expected. However, these new norms will have particular impact on the practice of tubal ligations among non-Catholic provider partners with Catholic health facilities. Because of this, reproductive-rights groups appear ready to use the directives in an all-out campaign to stop any future mergers involving Catholic hospitals. Already such groups have introduced a novel strategy to use charity laws to challenge Catholic health care mergers.

With grants from some 13 U.S. foundations, including Ford, the David and Lucile Packard, and Turner and the George Soros’s Open Society Institute, the National Women’s Law Center in Washington has just issued a 96-page briefing paper, titled Hospital Mergers and the Threat to Women’s Reproductive Health Services, explaining how to use charitable asset laws to enlist state attorneys general in the effort to block Catholic health care growth.

Essentially the N.W.L.C. paper argues that a charitable mission can be viewed as changed when a secular hospital merges with a Catholic one, since abortion and sterilization services must be terminated under the directives. Changing a non-profit’s mission, they say, violates laws designed to regulate public charities. A hospital whose mission in the past has included a full range of health care services to the community may not change that mission later because they are entering into agreements with religious institutions, according to the N.W.L.C.

The courts have not yet definitively decided this question, but attorneys general and reproductive-rights groups have successfully used charitable asset laws to prevent, modify or dismantle mergers in four states.

New Hampshire. A community hospital and a Catholic medical center merged in 1994. Some four years later the attorney general, using a charity’s law framework, found that a charitable institution could not exclude the community from having a voice in decisions affecting the capacity of the institution to fulfill its mission. The controversy resulted in a decision to dissolve the consolidated hospital operations.

New Jersey. Two hospitals, one secular and one Catholic, moved toward a merger into a single hospital. Tubal ligations and abortions were no longer available through the secular hospital. Merger approval was granted. However, interventions by pro-choice groups using charitable mission standards resulted in the secular hospital’s agreement to establish a set-aside fund for abortion services and transportation.

West Palm Beach, Fla. The merger of a Catholic hospital and a non-Catholic hospital in 1994 resulted in the termination of inpatient tubal ligations. The attorney general became involved four years later when the Catholic participant eliminated all acute care services, which the attorney general felt to be a change in the corporate mission. A settlement resulted in the sale of both hospitals to a for-profit company.

New York. An Episcopal and a Catholic hospital attempted to merge in 1999. The attorney general, responding to family planning advocates, required the Episcopal member to notify the community of the reduction of abortion and sterilization services and to provide a toll-free hotline informing consumers about where such services could be obtained.

These episodes and the reaction to the new directives on the part of abortion and sterilization advocates suggest there is further trouble ahead for Catholic health care providers. Working with a well-financed campaign, reproductive-rights organizations have launched a multilevel effort to sway public opinion against the growth of Catholic health care.

The National Women’s Law Center is circulating to abortion rights networks sample letters that provide boilerplate language that can be used to engage the interest of state attorneys general in Catholic health care mergers. Model op-ed opinion columns for local newspapers have been crafted as well for ready use wherever Catholic mergers are announced. The user simply drops in the name of the hospitals involved.

Meanwhile, Catholics for a Free Choice has mobilized its set of contacts to get the word out about the bishops’ recent vote on the directives, which, C.F.F.C. claims, “jeopardizes the health and well-being of U.S. women.”

With the help of the Ford Foundation, an entire organization was formed to monitor threats to reproductive health care as the result of new hospital partnerships. MergerWatch Inc. already offers hands-on assistance to 15 communities where health care mergers with religious facilities threatened the preservation of reproductive health services. Following the bishops’ action on the directives, MergerWatch warned that community groups all over the country will be monitoring Catholic health care mergers for the elimination of reproductive health services.

The campaign has expanded to the broad reach of the Internet too. The latest example is Susan Jacoby, a freelance writer, who posted an article following the bishops’ action with the title, “Under the Knife and the Cross.” Jacoby rips the tightening of the directives and condemns non-Catholic hospital boards in mergers that she says have “caved in to sectarian demands.”

In the meantime, state legislatures are beginning to move. In California, a recently enacted law requires that the attorney general review all future health care mergers. Further legislation has been introduced in Sacramento to subject all contracts for California Medical assistance under MediCal to the condition that they provide a full spectrum of reproductive health services. Although passage of the measure seems in doubt, it is clear that in the face of a well-funded legal and propaganda offensive against Catholic hospitals, it is time that these institutions step up their efforts to get their side of the story to the public.

Most Catholic mergers have very little effect on the overall availability of sterilization and abortion services, according to the Catholic Health Association in St. Louis. Data there show that two-thirds of all hospital mergers over the last five years have not involved Catholic hospitals. Although they make up the largest single group of U.S. non-for-profit hospitals, Catholic hospitals represent about 6 percent of all sole community health care providers nationwide. The hospitals that have been consolidating and merging with larger systems are driven to do so by the necessities of economic survival.

From the perspective of public charity, Catholic hospitals have worked miracles to stay alive, especially in recent years. They have capably coped with gross underpayment by insurance companies and managed care; they have dealt with the escalating cost of drugs, nursing shortages and ever greater numbers of poor and uninsured patients who come through their emergency doors. Even more challenging has been the transition of personnel from religious to lay. Organizations like the C.H.A. and individual Catholic health care systems have been spending enormous amounts of time and money to help new lay leaders understand and articulate the distinctive religious values and institutional identity of Catholic health ministry.

At a time when the ranks of sisters are thinning in Catholic health care, a system of care has taken shape that is better integrated into the life of the local church than it has ever been. Today it is not uncommon to see collaborative approaches between Catholic hospitals and diocesan Catholic charities in caring for the poor. Parish health care projects that serve the elderly and provide health screening in urban Catholic schools, as well as parish-based hospice care, have woven Catholic health providers into the fabric of the church’s broader ministry. And more movement in this direction is expected.

As the boards of the larger American foundations continue to fuel the new campaign to slow down or stop Catholic health care, state attorneys general may be wise enough to reject the premise of such crusades—namely, that in community health care, one size fits all.

The revised and tightened-up ethical directives mark the beginning of a new and challenging chapter for Catholic hospitals. While the bishops rightly set forth ethical parameters in a new economic environment for church-related hospitals, the directives will require a more vocal and supportive Catholic community to ensure that these superb institutions, now more intertwined with the day-to-day ministry of the church, are not left alone in their fight to preserve health care services in a distinctively religious tradition.

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