Bad Medicine

When Catholic And Non-Catholic Hospitals Merge, Women's Health Care Services Often Get Excommunicated

When residents of Ulster and Dutchess Counties in southeastern New York began to hear rumors of a proposed merger between three local hospitals in late 1996, the news at first seemed non-controversial.

In this age of medicine as a big business, the proposal was certainly not unusual; hospitals are merging all over the country. But it soon became apparent that what seemed at first to be purely a business deal could have far-reaching implications for health care in the Hudson Valley due to the nature of one of the hospitals involved.

Benedictine Hospital is a Roman Catholic institution in Kingston run by the Benedictine Sisters, a New Jersey-based order of nuns. The two other facilities, Kingston Hospital and the tiny Northern Dutchess Hospital in nearby Rhinebeck, are non-sectarian. Yet the proposed merger called for imposing a series of restrictive Catholic health care directives on all three facilities.

In the case of Kingston Hospital and Northern Dutchess Hospital, that would mean an end to elective abortions, distribution of contraceptives and sterilizing operations such as tubal ligations and vasectomies as well as adoption of Catholic policies dealing with end-of-life issues for the terminally ill.

As word of the merger plan continued to spread, the controversy escalated. Soon bright red, octagonal signs reading, "NO RELIGIOUS HOSPITAL MERGER" were springing up on local lawns. Activist Caryl Towner helped form an opposition group called Preserve Medical Secularity. One rally attracted more than 800 participants, and area residents packed public meetings to ask questions and express concerns.

"When this first hit the newspaper, it was presented as a done deal," said Willa Freiband, director of public affairs for the Mid-Hudson Valley Planned Parenthood, who helped organize the opposition. "There was no opportunity for the community to even voice their opposition. As we predicted, there was vehement opposition to any religious doctrine superseding patients' rights. By trying to force it, the hospitals probably were dooming their own plans."

It took a year and a half, but determined community resistance, effective organizing and the threat of an anti-trust lawsuit finally sunk the merger plans. All three hospitals began looking at other options. Northern Dutchess has already merged with another non-sectarian facility.

What happened in Ulster and Dutchess Counties is far from unique. In fact, similar controversies are replaying around the country as hospital mergers become more and more common. But in many cases, the outcome is different. The mergers go through, and non-sectarian hospitals find themselves saddled with Roman Catholic doctrines. Critics say local residents' health care, especially women's care, is suffering as a result.

Late last year, for example, financially troubled Massapequa General Hospital on Long Island, N.Y., entered into an agreement with Catholic Health Services that essentially made the Catholic group its landlord. The hospital then announced it would no longer perform abortions or tubal ligations.

"They agreed to disband these services," Donna O'Brien, senior vice president for Catholic Health Services, told Newsday. "As the landlord, we required they would have to follow the ethical directives of the Catholic Church."

Why is this issue suddenly capturing headlines now? Primarily it's because of merger-mania. Catholics for a Free Choice reports that since 1995, 105 mergers have occurred between Catholic and public or non-sectarian private hospitals nationwide. In at least half of those cases, reproductive health services were either dropped entirely or severely limited. CFC reports that there are now 91 counties in the nation where a Catholic hospital is the sole provider of health care, and 95 percent of those counties have a population where Catholics are in the minority.

When a non-sectarian hospital looks for a merger partner, chances are a Roman Catholic institution will be considered. The church has a long record of running hospitals, a practice that in Europe dates back to the Middle Ages. In this country, Catholic hospitals began to spread as the church grew in the post-Civil War period. Today the church operates 800 hospitals and health care centers nationwide. In addition, the church runs five of the 10 largest health care systems in the United States and Canada. An estimated 50 million people per year seek treatment at Catholic facilities.

Although many of the people served in Catholic hospitals are non-Catholic, the facilities have always retained a distinctly sectarian flavor and remain under the tight control of the U.S. bishops.

Catholic hospitals are governed by a series of 70 regulations called the "Ethical and Religious Directives for Catholic Health Care Services." The directives, first approved by the U.S. Catholic bishops in 1971, seek to ensure the Catholic character of the institutions. In some communities, where there is a choice of health care, the existence of Catholic hospital directives is non-controversial. But the recent wave of mergers has forced the issue to center stage in many cities and towns. In rural areas, especially, non-sectarian hospitals may find themselves with a hard choice: merge with a Catholic institution and accept its directives or risk going out of business.

When Catholic hospitals contemplate mergers with secular hospitals, church officials insist that the new partners accept the directives. But adoption of this intricate list of rules, which were revised and updated by the U.S. Catholic bishops in 1994, can mean big changes for non-sectarian hospitals.

In a nutshell, the directives forbid hospitals from offering any services that contradict Catholic teaching. They specifically prohibit Catholic hospitals from offering abortion for any reason, vasectomies, tubal ligations and in vitro fertilization or distributing any contraceptive device (even "emergency contraception" for women who have been raped or condoms for HIV-positive patients).

The directives also state that the church is not bound to honor any "living will" or end-of-life instruction that a terminally ill patient may have signed. Although the directives say that no one should be kept on life support against his or her will, they are vague enough to give the church leeway to intervene in end-of-life issues, stating, "The institution, however, will not honor an advance directive that is contrary to Catholic teaching."

The bishops' directives also specifically address the issue of mergers with non-Catholic hospitals. They call for as much cooperation as possible but add that, ultimately, church doctrine must triumph in cases of conflict.

"The possibility of scandal, e.g., generating a confusion about Catholic moral teaching, is an important factor that should be considered when applying the principles governing cooperation," read the directives. "Cooperation, which in all other respects is morally appropriate, may be refused because of the scandal that would be caused in the circumstances."

In extreme cases, doctors are effectively gagged and told not to even make referrals for services the church considers morally wrong. In rural areas or small towns, patients may suddenly find themselves losing care that they have come to rely on.

Church officials insist they are open to compromise on many of these questions. Last February The Wall Street Journal profiled the Rev. Gerald Magill, a Catholic priest who has made a bustling side career out of advising hospitals contemplating mergers on how to continue offering certain services despite the directives.

In once case, Magill persuaded the local bishop in western New York to permit Memorial Medical Center, a secular non-profit hospital in Niagara Falls that serves a lot of low-income patients, to continue performing sterilizing operations and distributing contraceptives through an affiliated clinic after merging with the Catholic Daughters of Charity National Health System.

But critics remain skeptical of such arrangements, since the church can reverse its policies at any time. In Niagara Falls, church officials lived with the arrangement for two years, then proposed closing Memorial Medical Center. Community opposition spiked the plan and led Memorial to "divorce" from the Catholic system and end the merger.

A "cooperation" solution was proposed in Kingston, but Freiband and other critics branded it unacceptable. "They called that the 'don't ask, don't tell' policy," said Freiband. "The reality was that these things do change over time and you can't assume that just because you have a lenient bishop now that you will continue to have one. This was taking power away from local officials and giving it to an outside group. It really meant that an outside organization was going to dictate health care from now until forever."

Critics of compromise arrangements point out that a complicating factor is that outside forces can upset them. In Austin, Texas, last summer, a band of ultra-conservative Catholics assailed Brackenridge Hospital, a city-owned facility managed by the Catholic Seton Healthcare Network, and demanded that it stop offering sterilizations and birth control -- even though the lease agreement between the church and the city stipulated that these services be offered.

Austin Bishop John McCarthy had approved the arrangement, but the far-right Catholics attempted to go over his head, firing off a series of complaints directly to the Vatican. In response, Vatican officials instructed McCarthy to stop sterilizations and contraceptive distribution at the hospital.

McCarthy responded that the 30-year lease between the hospital and Seton requires the facility to offer reproductive health care services (with non-hospital staff) and assured the Vatican that a "wall of separation" had been built between Seton and medical practices the church considers sinful, reported Cox News Service. The dispute is ongoing.

In small cities the collapse of "cooperation" agreements can mean that people in need of reproductive services must travel an hour or more to other communities. Freiband noted that had the merger gone through in Kingston and had the services been discontinued, patients needing reproductive health care would have had to travel to New York City or Albany -- both at least an hour away. Low-income residents who may lack their own cars would have found this a significant obstacle, she notes.

But the issue raises more than questions of inconvenience. Opponents of proposed mergers between Catholic and secular hospitals argue that denying certain services can put women's health at risk.

Freiband cites a recent story from New Hampshire where physician Wayne Goldner was denied the right to perform an abortion on a patient at Manchester's Elliot Hospital, which in 1994 merged with Catholic Medical Center. The woman had gone into premature labor at 14 weeks, and the abortion was not elective since Goldner considered it necessary to protect the mother's health.

Nevertheless the hospital refused, and the patient had to take an 80-mile cab ride to another facility to have the procedure done. (Thanks in part to that controversy, the two hospitals later ended their relationship.)

And, since Catholic directives ban tubal ligations, hospitals affected by mergers cannot offer this service when it's most convenient for women -- after childbirth. As a result, women who still want the procedure done have to submit to a separate procedure at a different facility.

Critics also charge that some of the directives are simply cruel. Directive 36, for example, speaks of offering "compassion and understanding" to rape victims but then goes on to add that it is not permissible for Catholic hospitals to give them so-called "morning after" pills, which can prevent pregnancy.

The church regards these pills as the functional equivalent of abortion. The directive states, "If, after appropriate testing, there is no evidence that conception has occurred already, she may be treated with medications that would prevent ovulation, sperm capacitation or fertilization. It is not permissible, however, to initiate or to recommend treatments that have as their purpose or direct effect the removal, destruction or interference with the implantation of a fertilized ovum."

Catholics for a Free Choice found that most Catholic hospitals simply refuse to provide "morning after" pills for any rape victim. The group surveyed 589 Catholic hospitals nationwide earlier this year and found that 82 percent said they would not provide emergency contraception to rape victims. Nine percent said they would, and 9 percent had no policy. In addition, 31 percent of the hospitals that declined to provide the pills also refused to give a referral to a rape victim who wanted to get the pills from another facility.

This policy has the strong backing of the Vatican. Last March a Vatican representative speaking at a United Nations meeting challenged the use of "emergency contraceptive" pills in the case of rape. Kevin Schmidt, a physician from Springfield, Mass., said the Vatican opposes any procedure that blocks implantation of the embryo because it is "an abortifacient and ends a life." He called it "immoral to attempt to remediate the violent act of rape with another violent act -- abortion."

The following month, a Vatican official issued another statement attacking "morning after" pills for sexual assault victims, this time in response to newspaper reports that Albanian refugee women were being raped by Serbian soldiers in war-torn Kosovo.

Church policy, which is determined by the all-male hierarchy, may be inflexible. But the fact is that most U.S. Catholics have made up their own minds on these issues, and they don't necessarily agree with the bishops. Data show vast majorities of Catholics favor the use of artificial birth control and legal abortion. Critics of proposed mergers say this is good evidence that the issue should not be viewed as one of Catholics vs. non-Catholics. They assert that when mergers take place and reproductive services are discontinued or curtailed, the health of all women is jeopardized.

According to data compiled by Catholics for a Free Choice, 56 percent of all Catholic women of child-bearing age use artificial contraceptives. A mere 3 percent rely exclusively on "natural" family planning methods, the only kind approved by the church.

Most Roman Catholics also disagree with the hierarchy on abortion. CFC's data indicates that 82 percent of American Catholics say abortion should be legal in some circumstances. Only 15 percent take the bishops' position and favor a total ban. Furthermore, the data also show that Catholic women have abortions at the same rate as non-Catholic women in the general population.

The bishops, however, are accustomed to dealing with an obstreperous U.S. flock and show no signs of being willing to change church policies. Catholic hospitals remain as sectarian as ever.

Ironically, despite their clear sectarian character, Roman Catholic hospitals and medical institutions run by other religious groups qualify for millions in government aid every year -- yet they retain the right to enforce sectarian practices. This is due in part to an obscure, 100-year-old U.S. Supreme Court case called Bradfield v. Roberts.

In Roberts, a taxpayer sued the federal government to try to block an arrangement Congress had entered into with a Catholic hospital in Washington, D.C., regarding care for the indigent. Under the plan, the federal government agreed to erect a building on the grounds of Providence Hospital and pay a specified fee for each poor patient sent by D.C. officials to the facility.

In a unanimous ruling, the high court upheld the scheme, holding that although the hospital was Roman Catholic, it was owned by a secular corporation that was legally separate from the hospital.

In fact, the "corporation" was composed entirely of Catholic nuns belonging to the Sisters of Charity. Thus the court's decision made something of an artificial distinction. In 1947's Everson v. Board of Education, a landmark church-state case, Justice Wiley Rutledge's dissent called the high court's reasoning in Roberts "highly artificial," but the ruling has never been overturned.

In 1946 Congress passed the Hospital Survey and Construction Act, which provided $150 million in federal funds to help "public and non-profit" hospitals expand their facilities. By 1950, 99 grants had been distributed, and 76 of them had gone to Catholic hospitals. Seeing the treasury open, Jewish, Episcopalian, Methodist and other sectarian health care centers began applying for money.

Today Catholic hospitals, like many for-profit institutions, draw government support less directly through Medicaid and Medicare. This too has been controversial.

"The reality is that they are accumulating huge amounts of money that is exempt from taxation," Susan Berke Fogel, legal director of the California Women's Law Center, a group that has expressed alarm over the recent spate of mergers, told The Nation recently. "We, the taxpayers, are subsidizing their expansion. Their revenues aren't required to go back into health care but can go into religious institutions. The public is simply not benefitting from these transactions."

Berke Fogel pointed out that the Daughters of Charity, the Catholic order of nuns that is the largest owner of Catholic hospitals in the country, had cash and investments totalling $2 billion as of March of 1998.

Critics of proposed mergers between Catholic and non-sectarian hospitals realize that direct challenges on church-state grounds are unlikely to be successful. Therefore, they are exploring other options. The National Women's Law Center, for example, has drafted a manual arguing that the mergers may violate anti-trust laws, which it distributes to activists fighting mergers.

The threat of anti-trust action can be potent. During the Kingston battle, activists contacted the Federal Trade Commission and asked lawyers to intervene, arguing that a consolidation of health care services would create a monopoly effect. FTC attorneys began looking into the matter, a move anti-merger activists said was crucial to sinking the plan.

The Law Center, CFC and other groups also note that most states have laws requiring government approval before hospital mergers can take place. In some states, reproductive health care advocates have worked with the relevant government officials to block mergers that were deemed not in the public interest.

In 1997, a proposal by five hospitals in Connecticut, one of them Catholic, to build a day surgery center in Avon was blocked after reproductive health care advocates urged state officials to stop it in part because the center would not provide abortions or sterilizing operations. In rejecting the plan, the state commissioner of health care wrote, "The project as proposed is not in the best interest of consumers of health care services or the payers for such services."

Concerned citizens are also sharing information. After the Kingston deal collapsed, Lois Uttley, one of the activists who worked on the issue, helped create MergerWatch, a branch of Family Planning Advocates in Albany, which keeps tabs on proposed mergers between Catholic and non-Catholic hospitals and offers advice to people concerned about losing reproductive health care services.

Uttley told Church & State that MergerWatch has recently helped block proposed mergers in Miami, Baltimore, Wilmington, Del., and Enid, Okla. "There is a trend here," she said. "When communities are awakened to the potential to have religious gatekeepers dictate what services they may or may not obtain, people are outraged.

"People are already upset over HMO gatekeepers determining what services they may receive," she continued. "To add the local bishop is something that many people simply find unacceptable." (MergerWatch can be reached online at

In the end, say Uttley and Freiband, grassroots activism remains a powerful weapon. "The bottom line is, you can't let someone else take care of you," Freiband told Church & State."You have to advocate for your own rights. Our case was a good example. People became active. We did not have to change any laws to make this stop. If people take on the responsibility for their communities, they really can make a difference."