Why is the A.C.L.U. targeting Catholic hospitals?
Back in 2013, at a time of “unprecedented turmoil for the hospital industry,” some onlookers noticed that Catholic hospitals were an exception to an alarming trend.
“At a time when other types of nonprofit hospitals have been disappearing” in the United States, ProPublica reported, citing a study by the progressive group MergerWatch, “the number of Catholic-sponsored hospitals has jumped 16 percent.”
Today, one in six patients receives medical care at a Catholic institution. According to the Catholic Health Association, there are 649 Catholic-sponsored hospitals in the United States employing nearly 750,000 people. For leaders in Catholic health care, the growth of these hospitals at a time of economic uncertainty is to be celebrated. It is a sign that these institutions, many of which were founded by women religious to serve the most needy, continue to thrive in the 21st century.
But for others, these developments are a cause for great concern.
Last year, MergerWatch put out another report, this one alerting the public about 46 Catholic hospitals. Each one, the report warned, represented the sole provider of hospital care to a given community. As a general rule, that meant the next closest source for comparable care was at least 35 miles away, or more than a 45-minute car ride.
The list included relatively large hospitals like Ministry St. Joseph’s in Marshfield, Wis. (470 beds), and tiny ones like St. Thomas More in Cañon City, Colo. (25 beds). In a few states—Alaska, Iowa and Washington among them—more than 40 percent of the acute care capacity was Catholic-owned or Catholic-affiliated. All together, according to the report, those 46 Catholic “sole community hospitals” were responsible for more than 200,000 patient discharges and an estimated 1.07 million emergency department visits in 2016.
You might think these numbers bolster the argument that the church plays a critical role in the American health care system, especially in underserved communities. These are, after all, fully licensed facilities, which have met all state and federal requirements for providing medical care.
But this is not enough for the American Civil Liberties Union.
In 2015, that group filed a lawsuit alleging that hospitals in the Trinity Health system “use their religious identity to discriminate against, and harm, women.” The essence of the complaint was that these institutions conform to a document put out by the U.S. Conference of Catholic Bishops called Ethical and Religious Directives.
The Trinity Health case was eventually dismissed by a judge after the A.C.L.U. failed to show that any harm to the plaintiffs had actually occurred. But it is just one in a series of recent legal assaults on Catholic hospitals, spearheaded by the civil libertarian group over “access” to elective sterilization and emergency abortion procedures.
The campaign against these health care institutions has high stakes not just for the church but also for underserved communities. If the A.C.L.U. is successful in pressing one or more of its suits, “it very may well drive Catholic hospitals out of providing medical care,” Kevin Theriot, senior counsel and vice president at the public interest law firm Alliance Defending Freedom, said.
The campaign against these health care institutions has high stakes not just for the church but also for underserved communities.
Given that Catholic hospitals are the major source of care for people in at least those 46 communities cited by MergerWatch (and, in practice, for many more people than that), the results could be profound.
“One of the things about Catholic hospitals is they tend to have a mission to help the poor—the preferential option, so to speak—and it’s not an accident that a lot of urban hospitals happen to be Catholic,” Eric Rassbach, an attorney with the public interest firm Becket Law, said. “One of the main groups that would be impacted by having Catholic hospitals shoved out of health care in this country would be poor people.”
“The Catholic Church has done so much to care for men, women, and children of all ages, from all walks of life,” said Dr. Marguerite Duane, a family physician and adjunct associate professor at Georgetown University. “So this idea that we’re only there to care for the unborn is a misnomer. We’re there to care for every human being. And by proceeding with these lawsuits and trying to take down these hospitals—to basically sacrifice them to the god of abortion—there will be so many women that will suffer and children that will suffer, needlessly, because Catholic institutions are not there to serve them.”
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For the A.C.L.U., the fact that faith-based hospitals are prevalent—providing the only source of hospital care in some locations—makes them more of a target for lawsuits. In its 2013 report “Miscarriage of Medicine,” the organization wrote that the “number of Catholic acute-care hospitals has been increasing rapidly” and that this is a problem: “With the rise of Catholic hospitals has come the increasing danger that women’s reproductive health care will be compromised by religious restrictions.”
“Their stated objective is to make abortion available on demand,” Mr. Theriot said. “And anytime anyone doesn’t conform with that policy, they want to do their best to make them conform.”
Even the U.S. Conference of Catholic Bishops has been targeted. In 2013, the A.C.L.U. and a woman who had suffered a miscarriage, Tamesha Means, sued the bishops because she was not given the option of the particular treatment, in the form of an abortion, that the group would have preferred be available at Mercy Health Partners in Michigan. (She lost the baby, something that terminating the pregnancy would not have changed, but is otherwise now healthy.) Hospital chains like Dignity Health, the largest system in California, and Ascension, the largest nonprofit system in the country, have also come under fire for refusing to perform elective tubal ligations—the procedure commonly known as “getting your tubes tied.”
The popular press often sides against the Catholic Church on this issue, as when The New York Times wrote in an editorial that the bishops’ directives “inevitably collide with a hospital’s duty to provide care to pregnant women in medical distress.” Lori Freedman, writing in The New Republic, went even further, rejecting in toto what she called “the antiquated notion of faith-based care.”
In The Los Angeles Times, the columnist Michael Hiltzik said Catholic hospitals were “placing non-medical concerns ahead of those of patients and their doctors.” Commenting on one of the sterilization cases in particular, Mr. Hiltzik wrote: “As is often the case when a big institution tries to impose its religious doctrine on others who don't share it, Dignity Health, a $12.4-billion enterprise, is painting itself as the victim of a campaign by a 33-year-old mother of two to deprive it of its rights.”
In fact, the court agreed with Dignity. “Religious-based hospitals have an enshrined place in American history and its communities, and the religious beliefs reflected in their operation are not to be interfered with by courts at this moment in history,” Superior Court Judge Ernest Goldsmith ruled. Later he added that—contra to the A.C.L.U.’s claim that the case was purely about “women’s health”—“It’s about church and state. It’s about exercise of religion and to what extent it can be regulated by a court.”
Though it has not won in the courtroom so far, there is every indication these challenges will keep coming. The A.C.L.U. in May 2016 launched the project Health Care Denied, which includes a website inviting people to write in with stories of being “turned away” by a Catholic hospital.
Though it has not won in the courtroom so far, there is every indication these challenges will keep coming.
One of the individuals identified by that project is Jennafer Norris, a woman who developed a serious medical condition while pregnant and had to be hospitalized. The team at Mercy Hospital Northwest Arkansas cared for her during her illness, the report concedes, eventually delivering her child by a scheduled cesarean section. Nonetheless, she and her husband were “outraged” and “horrified” by their treatment, according to the A.C.L.U. The hospital’s crime was informing Ms. Norris in advance that it could not perform a tubal ligation to prevent her from getting pregnant again, but that she could be transferred to another medical institution if having the procedure done right away was very important to her. (She declined.)
“If you’re an institution and you’re opening your doors to other people,” Louise Melling, the deputy legal director at the A.C.L.U., said, “then you basically have to abide by the rules and not hurt people by virtue of discrimination.”
That argument does not sit well with Sister Carol Keehan, a member of the Daughters of Charity and the president of the Catholic Health Association. “There are very few hospitals that provide every medical service out there. So you can go to many hospitals that do not do open-heart surgery. You can go to hospitals that don’t do major neurosurgeries. You can go to hospitals that don’t have exotic, cutting-edge testing in various areas,” she said. “It strikes me that [the A.C.L.U.] has a sense that if you’re open for business, we can demand you do whatever we want. That’s just not true. You cannot come to a hospital and say, ‘I need neurosurgery, and I live in this community, and you call yourself a hospital with an operating room, and I demand that you do neurosurgery on me.’”
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The Christian practice of opening hospitals goes back at least to the Middle Ages. Roy Porter writes in The Greatest Benefit to Mankind: A Medical History of Humanity that hundreds of years ago, “crusading orders such as…the Teutonic Knights built hospitals throughout the Mediterranean and German-speaking lands.” St Bartholomew’s, the oldest hospital in Britain, was founded in 1123. “Christianity made its mark through action,” Porter explains.
Catherine of Siena, a doctor of the church from the 14th century best known for her spiritual writings, also worked in the hospital of Santa Maria della Scala during a time of great plagues in Europe. Sigrid Undset’s biography of the saint describes her caring for a woman “who suffered from a revolting sickness,” taking it upon herself to wash and bandage her patient’s “whole stinking body.” The nurse’s hands are said to have begun to show signs of leprosy, but she continued her work. After the woman died, Catherine buried her without help and was miraculously cured.
She was just one among many generations of Catholics who have committed themselves to giving medical care to those in need—at times even to the point of death. It is a vocation that was first modeled by Christ himself. Scholars note that Jesus performs 35 miracles of healing in the Bible.
“Catholic health care is a major way of living out the Gospel,” Sister Keehan said.
In the 19th century, women religious began taking leadership roles in health care in larger numbers.
Crisis and conflict were very often the precipitating events. A small band of European nuns famously accompanied Florence Nightingale in her nursing efforts during the hostilities in Crimea in the 19th century, while more than 600 Catholic sisters nursed combatants on both sides of the U.S. Civil War.
In myriad ways the church, and Catholic women religious in particular, had a hand in bringing about American health care as we know it. Their ethos of selfless service was especially important in the wild lands of the New World.
In Canada, Mother Marie de Saint-Joseph and her Ursuline sisters took in Native American orphans, writes Jo Ann Kay McNamara in Sisters in Arms: Catholic Nuns Through Two Millennia, then “nursed their charges through smallpox and suffered hunger with them in times of famine.” When the Sisters of the Third Order of Saint Francis sent 31 of their members to tend the victims of yellow fever in Memphis, Tenn., they all became infected, and five of them lost their lives. In Say Little, Do Much: Nursing, Nuns, and Hospitals in the Nineteenth Century, Sioban Nelson writes, “In the confusion and desperation that struck the cities in the midst of an epidemic, there was something extraordinary in the heroism and calm with which the sisters volunteered to nurse in the cholera, smallpox, yellow fever, typhoid, and diphtheria hospitals.”
In the 19th century alone, Catholic sisters established more than 300 hospitals in the United States. The Mayo Clinic, considered by many to be the best hospital in America today, was founded by the physician W. W. Mayo at the urging of the Sisters of Saint Francis and in partnership with them. Different religious orders set up shop in different cities and dedicated themselves to serving different ethnic groups—the Missionary Sisters of the Sacred Heart, for example, caring for Italian immigrants in New York; the Holy Family of Nazareth caring for Polish immigrants in Chicago; and the Sisters of Mercy caring for Irish immigrants in Pittsburgh.
All the while, Catholic medicine “became increasingly institutionalized and professionalized,” Professor McNamara reports: “Nursing sisters trained on the job in collaboration with doctors who appreciated their discipline, obedience, neatness, and above all their fearlessness in the face of contagious disease.” The country’s first academic program in hospital administration was started at Marquette University, a Jesuit school. “Building up their role as angels of mercy,” Ms. McNamara continues,“congregations of nursing sisters took a lead in organizing training programs in their hospitals some decades before the rest of the profession initiated such programs.”
The sisters became so effective at their jobs, they often were awarded government contracts to care for needy populations. In Buffalo, the Catholic hospital’s mortality rate for cholera patients was 39 percent, versus 53 percent at the county hospital. In Baltimore, a religious order took charge of the public infirmary from the state.
Esther Pariseau, a.k.a. Mother Joseph of the Sisters of Providence, arrived in Washington territory in the 1850s. “There were no hospitals, few schools, and little in the way of charitable services for those suffering the misfortunes of life on the frontier,” the Providence Health & Services website explains. A carpenter and architect by trade, Mother Joseph responded by using her own money to found dozens of such institutions, building many of them with her own two hands.
Her bronze likeness today graces the U.S. Capitol Visitor Center in Washington, D.C. An engraving recognizes her “monumental contributions to health care, education and social work throughout the Northwest.” But what is actually remarkable about her story is how unremarkable it is in the larger history of Catholic medicine.
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“Once the government has the power to violate one person's rights, it can use that power against everyone,” reads the A.C.L.U. website. “We work to stop the erosion of civil liberties before it's too late.”
The esteemed civil libertarian group has done much over its 97-year history to protect individuals’ freedoms. It played a role in Gideon v. Wainwright, the case that determined that defendants are entitled to counsel, provided by the state if necessary, and in Miranda v. Arizona, the case that required police to inform suspects of their rights. It has long been an opponent of capital punishment and mass incarceration. In 2010 it brought a Freedom of Information Act lawsuit and won the release of information about the U.S. military’s treatment of prisoners at Bagram Air Base in Afghanistan.
Most famously, in 1977 the organization defended the American Nazi Party’s right under the First Amendment to hold a march through downtown Skokie, Ill. The A.C.L.U. website notes that thousands of its own members “resigned in outrage, and donations declined sharply.” Yet the A.C.L.U.’s full-throated defense of free expression for even the most unpopular views is today remembered by many as its finest hour.
The group has, at times, allied itself with the Catholic Church. On March 8 of this year, it signed a letter opposing new federal rules that make women and children vulnerable to deportation if they lodge a criminal complaint, a departure from the policy under President Obama. Among the other signatories to the petition were Catholic Charities of the Archdiocese of Washington, Catholic Charities of the East Bay, Catholic Charities of Boston and the Catholic Agency for Migration and Refugee Services.
But just the week before, on Feb. 27, the group had filed a motion against a Catholic hospital system in the Midwest. If successful, the order would force the Franciscan Alliance to provide patients with “necessary gender-confirming care”—that is, therapies or surgeries to help biologically male patients “transition” to being female and vice versa.
In the early 1990s, the A.C.L.U. was a vocal supporter of the Religious Freedom Restoration Act, a law that said federal legislation cannot “substantially burden a person’s exercise of religion” unless the legislation is the least restrictive means of furthering a “compelling government interest.” The group was, in other words, actively involved in the effort to strengthen protections for private parties to practice their faith freely as recently as 24 years ago. The A.C.L.U. website still says religious liberty is a “fundamental freedom” that “can’t be taken away, even by ‘majority rule.’” So how is it that the same organization is now in the business of repeatedly suing Catholic hospitals to force them to perform procedures to which the church is morally opposed?
“We have a position, which is that religious freedom gives you a right to your beliefs, but it doesn’t give you a right to hurt others,” Ms. Melling of the A.C.L.U. said. “So we have filed suits to draw attention to the ways in which religion sometimes appears to be put ahead of medicine, to the detriment of patients.”
The change seems to be part of a larger evolution in the group’s priorities that have taken place under the current executive director, Anthony Romero, who took over in 2001. Those changes sparked controversy about a decade ago, when a former head of the A.C.L.U., Ira Glasser, and a handful of other prominent affiliates went public with complaints about his leadership. These included accusations that employees and board members were being “gagged” from speaking to the press—hard to square with the identity of a group that claims to support free speech everywhere.
“The critics proclaim that Romero has made grave mistakes; that those mistakes amount to a firing offense; and that he has betrayed ‘fundamental ACLU values,” The Nation reported in 2007.
The group has also been described as moving from broad-based civil libertarianism to an agenda more closely aligned with the Democratic Party. Mr. Glasser and the other dissenters “saw [the new executive director] transforming the organization that once defended the right of Nazis to march on Skokie into just another liberal interest group, money-hungry and cowed by political correctness,” Michelle Goldberg explained in The American Prospect in 2009.
The changes might be characterized as a shift in focus toward civil rights and away from civil liberties. “This conflict is pretty basic to our democracy,” says Wendy Kaminer, a former A.C.L.U. board member and now a prominent critic of the group. “Civil rights are entitlements to various forms of government protections, or in some cases, some people would argue government benefits. Civil liberties are simply the freedom from government interference in your life or in your business.”
“It would be great if A.C.L.U. were an organization that civil libertarians from various places on the political spectrum could embrace. I think it would be much more effective that way at protecting everyone’s civil liberties,” she said. But under Mr. Romero, “it is increasingly an organization of the left. I look it now as part of the progressive arm of the Democratic Party.”
Ms. Kaminer rejects the idea that the current A.C.L.U. campaign against Catholic hospitals is animated by prejudice, however. “I really, really don’t think there is an anti-Catholic bias at the A.C.L.U.,” she says. “I think there is a retreat from a really robust defense of civil liberties generally, when the civil liberties claims infringe upon the A.C.L.U.’s civil rights agenda.”
And at the top of that “civil rights agenda”—higher even than the First Amendment, evidently—is a woman’s ability to end a pregnancy or undergo a tubal ligation when and where she pleases.
And at the top of that “civil rights agenda”—higher even than the First Amendment, evidently—is a woman’s ability to end a pregnancy[.]
“The A.C.L.U. is trying to enforce its own orthodoxy on moral issues as they see them,” Hillary Byrnes, assistant general counsel at the U.S.C.C.B., said. “It’s really unfortunate, but they’re trying to essentially force Catholic hospitals to not be Catholic anymore.”
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Despite the ongoing legal crusade, it is clear that neither the church nor the Catholic health care institutions intend to be cowed into obeisance. “The A.C.L.U. has suddenly made themselves standard-setters for maternity care,” Sister Carol Keehan said. “And that’s not a role that they get.”
She points out that responsibility for accrediting American hospitals falls to the nonprofit Joint Commission, in partnership with state departments of health. “Catholic hospitals have to meet those standards, and they do,” she says. “Many of them are designated as high-risk maternity centers, which means the most challenging pregnancies—mothers who are having a hard time or who are at high risk—that’s where you want them cared for.”
An array of groups are busy holding the line. Becket Law and the Alliance Defending Freedom represent many of the Catholic hospitals that have been targeted. And in addition to fending off the A.C.L.U.’s lawsuits, the U.S.C. C.B. is supporting the federal Conscience Protection Act, which prohibits the government from discriminating against health care providers for being pro-life. “We are trying in every context to fight back against these attacks,” Ms. Byrnes said.
The Michigan-based Christ Medicus Foundation advocates for lawmakers at all levels to give Catholic medical institutions the space they need to care for those in need. “It’s important that this beautiful work of the church is respected and protected,” says Louis Brown, director of the foundation. “As a Catholic community that wishes to serve all people regardless of their faith background—we want to serve them, we want to love them—but we want to be able to do that consistent with what we have always been as a people, which is a people who believe in life.”
The lawsuits and negative publicity can be jarring, but Catholic leaders are committed to defending their historic place in the U.S. health care community.
Speaking of efforts like the A.C.L.U. campaign, Sister Keehan said, “When some of the people who are making these statements have done as much for this country as Catholic health care has, then I think they might achieve some standing.” And she shows no sign of wearying in the fight: “Just because someone doesn’t like the church having a role—I gotta tell you, that doesn’t mean you get to wipe us off the face of the earth.”