I. Statement of problem
In community after community across the United States, patients are losing access to many reproductive health services when their local secular hospitals merge with nearby religiously-affiliated facilities that object to those services on ethical grounds. Depending on the denomination involved and the form of the hospital partnership, services banned by the merged entity may include contraception, abortions, sterilizations, in vitro fertilization, emergency contraception for rape victims, and the discussion of condom use as part of HIV prevention counseling.
Patients can also see their end-of-life choices restricted at formerly secular hospitals and nursing homes. Decisions by patients or their surrogates to refuse or remove feeding tubes may be denied, if deemed contrary to religious teaching. Not only hospitals, but also affiliated outpatient clinics, medical office buildings, nursing homes, home health care agencies and managed care plans can be affected by the adoption of religious health care rules.
Patients who once had a choice of religious or secular health care providers have seen this choice disappear, unless compromises or creative solutions preserved the historic missions and services of both hospitals. The problem has been particularly acute in "two-hospital towns" and in medically-underserved rural and urban areas, where patients may be left with only the health care choices permitted by the religious institution controlling their local health facilities.
The growing presence and market power of religiously-affiliated health providers were shown in an industry survey reporting that 11 of the 20 largest health care systems in the nation in 1999 were operated by religious entities. The three largest religious systems were Catholic Health Initiatives, with 69 hospitals (up from 65 in 1998), 10,023 beds and $4.7 billion in net patient revenues; the newly-formed Ascension Health, 60 hospitals, 12,705 beds and $5.4 billion in revenues; and Catholic Healthcare West, 48 hospitals (up from 36 in 1998), 8,172 beds and $3.9 billion in net patient revenues.1
In May of 2000, another Catholic mega-system was formed with the merger of the Michigan-based Mercy Health Services and Indiana-based Holy Cross Health System into Trinity Health, with 43 hospitals and $4.2 billion in annual revenue.2 One of every 10 acute care hospitals in the nation is now Catholic, and those facilities account for 16 percent of all U.S. hospital admissions, according to the Catholic Health Association of the United States.3
The largest non-Catholic religious system, the Adventist Health System, had 29 hospitals and $2 billion in net patient revenues in 1999. 4
These sectarian health providers (and the nonsectarian institutions with which they become business partners or which they acquire) are permitted by federal and state legislation to opt out of services they find ethically objectionable. This related back to 1973, when Congress passed the Church amendment5 that allows individual health care providers and institutions to refuse to provide abortion and sterilization services based on moral or religious convictions. By 1978, most states had adopted their own “conscience clause” laws.6
The Alan Guttmacher Institute has reported7 that these laws are now being broadened in two ways: (1) they go beyond abortion and sterilization to encompass "any health services about which an ethical, religious or moral objection is raised" (including counseling and providing information about those services) and (2) they are being extended beyond providers to include corporate payers, such as health plans.
In the Balanced Budget Act of 1997, Congress enacted the first so-called "conscience" language specific to the Medicaid program, allowing Medicaid managed care plans to refuse to "provide, reimburse for, or provide coverage of a counseling or referral service if the organization objects to the provision of such service on moral or religious grounds." One such Medicaid managed care program, New York’s Catholic-sponsored Fidelis Care, does not cover contraceptive services or counseling, sterilizations or abortions. Fidelis enrollees must find providers who will accept their Medicaid cards for these services.8
Focused as they are on protecting sectarian providers, these laws generally do not address the impact of the permitted exemptions on third parties, specifically the patients who are unable to obtain needed services in their own communities and the medical personnel who are unable to provide certain services, even when medically indicated, because of institutional policies.
II. Purpose and Objectives
It has been the longstanding position of the American Public Health Association that access to the full range of reproductive health services, including abortion, is a fundamental right. Further, in a resolution adopted in November 1997,9 APHA called for action preserve reproductive health care in the context of hospital mergers and affiliations with religious health systems.
This paper is designed to examine this serious problem, its impact on community access to a full range of health care services, the consequences for patients and public health, and the potential for disruption of the physician/patient relationship when religious health care directives conflict with a patient's need for services. Most important are examples of "creative solutions" that have successfully preserved access to reproductive services threatened by religious/secular hospital mergers and steps that governments can take to help protect patients' rights and public health. Finally, actions are proposed that the APHA and its members can take to promote wider public examination of this problem and means of addressing it.
III. Religious Health Care Directives
A number of religious denominations own hospitals and health systems in the United States. Some, such as those founded by Presbyterians, Methodists, Episcopalians, and Jews, operate in an essentially nondenominational manner that does not limit patient choices for religious reasons. Adventist and some Baptist facilities, however, ban “elective” abortions.
The impact on patient choices and physician autonomy has been the most dramatic when mergers or affiliations involve one of the nation’s 600 Catholic hospitals. These institutions are guided by "The Ethical and Religious Directives for Catholic Health Care Services," a document issued by the National Conference of Catholic Bishops.10
The Bishops’ 70 specific directives include prohibitions on some reproductive health services: contraception (Directive 52), female and male sterilizations when their "sole immediate effect is to prevent conception" (Directive 53), abortion (Directive 45), and infertility services such as in vitro fertilization (Directives 40 and 41).
While Directive 36 appears to offer an exception to the ban on contraception for rape survivors (“a female who has been raped should be able to defend herself against a potential conception”) few Catholic hospitals actually provide emergency contraception to women who have been raped. Some Catholic theologians view emergency contraception as a potential abortifacient,11 although it is not categorized as such by the American College of Obstetricians and Gynecologists or the American Medical Women’s Association.12 Emergency contraception prevents pregnancy by delaying ovulation, inhibiting fertilization and preventing implantation. It is not effective if pregnancy is already established.13
Directives 24, 25, and 28 state that a patient’s advance directive for medical treatment or the decision of the patient’s appointed surrogate will be honored “so long as it does not contradict Catholic principles.” If the treatment request is determined to violate Catholic teaching, “an explanation should be provided as to why the directive cannot be honored."14
The Catholic Church has also been one of the leading opponents of the use of embryonic stem cell tissue for experimental treatment of such diseases as Parkinson’s. Funding stem-cell research "would force new ground for active government support of research that takes human life," said Richard Doerflinger, a spokesman for the National Conference of Bishops’ antiabortion secretariat.15
Physicians, nurses, and staff who work at the merged hospitals must adhere to these moral codes (Directive 5). Patients seeking these services may be turned away without appropriate referrals to alternative providers.16
When the nation’s Catholic Bishops reissued the Directives in 1994, they included "principles of cooperation" to justify a Catholic institution’s partnership with a non-Catholic institution under certain circumstances, but specified that "any partnership that will affect the mission or religious and ethical identity of Catholic health care institutional services must respect church teaching and discipline."17
IV. Mergers and their effects
In the current volatile health care environment marked by the nearly-completed transition from fee-for-service medicine to managed care, increasing outpatient care, closing of excess hospital beds, escalating costs caused by expanding use of sophisticated technology, and cutbacks in Medicare and Medicaid spending institutions have been confronted with increasing costs and inadequate reimbursements. Seeking a solution, they have turned to business partnerships with other health facilities. These transactions may take the form of affiliations, joint operating agreements, joint ventures, full-asset mergers or acquisitions, and may involve individual hospitals, hospital systems or networks, as well as managed care plans of various types. Certain reproductive health services are reduced or even completely eliminated when religious and secular medical partners come together.
From 1990 through 1998, 127 Catholic/non-Catholic hospital mergers and affiliations occurred nationwide, including 43 in 1998 alone.18 In about half the cases, all or most of the disputed reproductive health care services were discontinued at the non-Catholic facility. In the remaining cases, either no information was available or a creative solution was found to preserve some or all of the reproductive services, as will be discussed below.
Mergers of religious and secular hospitals are contributing to an already steep and continuing decline in the percentage of hospitals providing abortions (now 34 percent, compared to 81 percent in 1973).19 While outpatient clinics can and do provide most abortions in metropolitan areas, patients with complications (such as diabetes) may require a hospital setting, and hospitals may be the only available abortion providers for rural women.
Also being lost through these mergers are contraceptive services (including emergency contraception for rape victims),20 prenatal testing and genetic screening/counseling (because it might lead to a patient’s decision to seek an abortion), and the ability of female patients to participate in medical trials, which typically require use of birth control to avoid the risk of damage to a fetus.21 Sterilization services often are discontinued, including tubal ligations at the time of delivery, requiring new mothers to undergo a separate surgical procedure and anesthesia, with attendant risks, at a later time. HIV prevention counseling for at-risk patients may be restricted by bans on recommending the use of condoms.
The effect of religious/secular mergers on patients’ access to services is particularly acute in emergency situations when services should be provided immediately. Emergency contraception for rape survivors is most effective in preventing pregnancy when it is taken in the first 12 hours following intercourse; delaying the first dose by 12 hours increases the odds of pregnancy by almost 50 percent.22 Many women who have been raped do not arrive at a hospital emergency room until several hours after the assault, and then may not be seen by a physician for as long as seven hours. 23
Despite the urgency of immediate treatment for rape survivors, the vast majority (82 percent) of the 589 Catholic hospitals surveyed nationwide in 1999 reported they do not provide emergency contraception to women who have been raped. Of those, 31 percent reported they would not provide a referral to another facility which did offer the treatment.24 Similarly, a study of emergency room protocols at 125 general hospitals in Pennsylvania completed in May of 2000 found that only 6 percent of Catholic hospitals (as compared to 33 percent of non-Catholic hospitals) are consistently offering and providing emergency contraception to rape survivors.25
Similar problems for patients can be created when hospital policies forbid the termination of pregnancies, even in emergencies. In Manchester, NH, in 1998, a 35-year-old Medicaid patient who needed an emergency termination when her water broke at 14 weeks of pregnancy was turned away from Elliot Hospital, which had agreed to ban abortions as a condition of merger with nearby Catholic Medical Center. Her physician was forced to put her in a cab and send her to an out-of-town hospital.26
In 1999, merger and acquisition activity between religious and secular hospitals slowed somewhat, a development consistent with overall trends in mergers in the country.27 Nonetheless, mergers remain a serious problem. Catholic Healthcare West is the largest operator of hospitals in California, running 48 hospitals of which 18 formerly were secular. Such religious health systems have come to dominate certain geographic areas of the country, or have become the only choice for patients in some communities.
For example, in Gilroy, CA, in 1999, a 34-year-old patient was unable to obtain a desired voluntary sterilization when she delivered her ninth child. Gilroy’s only hospital, South Valley, had been purchased by the rapidly-growing Catholic Healthcare West system, which renamed it St. Louise Medical Center and eliminated sterilizations and other services deemed contrary to Catholic moral principles.28
That transaction also illustrated how some health industry consolidations are being carried out in a way that evades community or regulatory review. When community opposition to the planned purchase arose, the seller, Columbia/HCA, simply closed the hospital and surrendered its license. Catholic Healthcare West then purchased the hospital building – a real estate transaction that required no review of the impact on patients. 29
V. Strategies to Preserve Reproductive Health Services
In sharp contrast to the loss of services in some communities are examples of places in which religious and secular hospitals have found ways to form mutually beneficial business partnerships, preserving the viability of both facilities, while leaving the secular hospital and its staff free to provide some or all disputed reproductive health services. Creative solutions may be reached by various means.
Form of affiliation
Some hospitals have chosen a looser form of partnership, such as a joint operating agreement or establishment of a network, rather than a full-asset merger, in order to avoid the complete merging of funds and administration that would require negotiating joint ethical guidelines.
In Dallas, TX, four major religiously-affiliated hospital systems came together in a joint operating agreement that respects their denominations’ sharply differing views on reproductive health services. An ethics panel established by Presbyterian Healthcare Resources, Harris Methodist Health System, St. Paul Medical Center (which is Catholic) and Baylor Health Care System (affiliated with the Baptist General Convention of Texas) concluded that “each hospital should maintain control over its own religious destiny and set medical practices consistent with its beliefs.”30
In another approach, secular John T. Mather Hospital in Port Jefferson, NY, formed a joint venture with Catholic St. Charles Hospital that excluded (and thus protected) an in vitro fertilization clinic at Mather.31
"Common values" approach
Catholic Healthcare West has permitted the continuation of birth control and sterilization services at some of the non-Catholic hospitals it acquires by utilizing a "common values" approach that sets some ground rules (such as no abortion services or assisted suicide), but leaves other ethical decisions up to a community task force.32
Use of alternative providers
Under pressure from community groups and Attorneys General, some secular hospitals have set aside funds prior to a merger to pay for increased family planning services at community clinics, as well as referrals and transportation for women to alternative abortion providers (Elizabeth, NJ, and Great Falls, MN, are two examples).33
Separately incorporated women’s health centers
In Battle Creek, Michigan, a secular hospital established a separately-incorporated “condominium hospital” on its top floor to provide tubal ligations to women at the time of delivery.34 In Murfreesboro, Tenn., sterilizations and vasectomies are performed in a separately-incorporated women’s pavilion within Middle Tennessee Medical Center, which is jointly owned by the Daughters of Charity and Baptist Hospital.
Surveying such approaches, the Wall Street Journal reported that some Catholic health systems are employing special ethicists such as the Rev. Gerard Magill, who told the newspaper that, “This may shock you, but the Catholic church is very keen on finding practical solutions to complicated problems. We certainly will not do immoral acts, but we certainly can come to arrangements.”35
Buyouts and acquisitions
In Batavia, NY, a year-long dispute over the reproductive services to be lost through a planned merger of secular Genesee Memorial Hospital and Catholic St. Jerome Hospital ended in 1999 when St. Jerome accepted a purchase offer from Genesee Memorial. The purchase agreement leaves Catholic religious directives in place at St. Jerome for five years, while allowing Genesee Memorial to continue provision of all reproductive services.36
The resolution of ethical and religious conflicts between merging hospitals sometimes can be achieved voluntarily at the local level when community members are aware of the potential loss of services and have the opportunity to make their views known. In Poughkeepsie, NY, citizen protests of a planned full-asset merger which would have caused a loss of reproductive services led to a joint operating agreement between secular Vassar Brothers Hospital and Catholic-sponsored St. Francis Hospital that permits Vassar Brothers to continue all reproductive services.37
Invoking existing regulatory measures
In some instances, concerned residents have utilized existing regulatory processes to slow down or block mergers that would have banned services or to establish bottom-line requirements for preserving emergency services and ensuring that patients are informed of a hospital’s new religious policies38 or a religious Medicaid managed care plan’s restrictions on services.
Where statutes require public hearings before changes can be made in facilities or services, the community has an opportunity to comment on and suggest alternatives to planned restrictions of reproductive health services. For example, the provision of emergency contraception for rape survivors was preserved at two non-Catholic Long Island, NY, hospitals coming under the governance of Catholic Health Services of Long Island through citizen participation in the state Certificate of Need regulatory process.39
In both New York and California, legislation has been introduced to protect patients’ rights and access to services. New York’s measures40 are designed to better inform communities when mergers are proposed, in that they (1) make the state merger approval process more community-friendly by encouraging public comment, (2) require the State Health Commissioner to ensure that a merger will not leave a community without access to vital health services, and (3) eliminate loopholes in state law and regulation that are permitting hospitals to evade the state merger approval process entirely.
In California, the Assembly has approved a measure designed to ensure that consumers are fully informed of restrictions in services provided by managed care plans and private providers. The measure requires that health plans work with women’s health experts to ensure that their promotional materials and provider directories give women the information they need to make the best health care choices.
Use of such creative solutions may be essential to ensuring the financial futures of both religiously-sponsored and secular hospitals. Without them, conflicts over ethical issues can prevent financially-advantageous partnerships or break up existing mergers. According to a Modern Healthcare article, clashes over hospital culture and ethical standards (including adoption of the Catholic Ethical and Religious Directives by nonsectarian hospitals) were among the leading causes of merger breakups.41
The need to develop and share widely viable creative solutions has been made even more urgent by the reversal of some existing compromises that had allowed some reproductive health care services, as happened in Little Rock, Arkansas.42
Further, any loss of reproductive health services caused by religious-secular hospital mergers is in opposition to the finding that most American women want and expect a wide range of health services to be available to them, regardless of the religious affiliation of the hospitals, pharmacies, or insurance companies that serve them. The great majority of women want their hospital to offer medically indicated abortions (87%), birth control pills (91%), sterilization procedures (85%) and emergency contraception for rape victims (78%).43
VI. Recommendations for APHA Action
The American Public Health Association can and must assume a leadership role in addressing this emerging health access issue. The APHA should:
- Inform its own members and other health professionals on this issue;
- Promote monitoring and research on the impact of religious/secular mergers;
- Encourage “creative solutions” to preserve access to vital health services in communities facing mergers of religious and secular institutions; and
- Develop a set of principles to guide community action when religious and secular hospitals or health systems propose to merge, including:
- advance notice to the affected community;
- opportunity for public comment;
- assurance that services lost through the merger will be available elsewhere in the community; and
- protection of the right of physicians and hospital staff to discuss reproductive health services and end-of-life choices no longer provided in the hospital and to assist patients in obtaining those services elsewhere.
While voluntary, negotiated creative solutions are desired, for those instances in when no such approach is achieved, federal and state legislation is needed to ensure communities are not left without access to vital reproductive health services and end-of-life choices.
1. Bellandi, D, Kirchheimer, B. and Saphir, A, “Profitability a matter of ownership status,” Modern Healthcare, June 12, 2000, pp. 24-44.
2. Bellandi, D. “Making Room for the Laity,” Modern Healthcare, May 29, 2000
3. Fact Sheet, Catholic Health Association of the United States, June 10, 2000, posted on the association’s website (www.chausa.org)
4. Bellandi, D. and Kirchheimer, B., op cit, p. 32.
5. Church Amendment to the Health programs Extension Act of 1973, Pub. L. No. 93-45 (enacted June 18, 1973)
6. Gold, Rachel Benson, “Conscience Makes a Comeback,” The Guttmacher Report on Public Policy, February 1998, Vol. 1. No. 1
8. Eisenberg, C. “No Birth Control Provided,” Newsday, Sept. 11, 1997
9. APHA Resolution 97-LB-1, Preservation of Reproductive Health Care in Hospital Mergers and Affiliations with Religious Health Systems, November 1997
10. National Conference of Catholic Bishops, Ethical and Religious Directives for Catholic Health Care Services, Washington: United State Catholic Conference, Inc.
11. O’Rourke, Rev. K. “Applying the Directives,” Health Progress (journal of the Catholic Health
Association of the United States), July-August 1998
12. Westley, E. “Emergency Contraception: A Global Overview, in Journal of the American Medical Women’s Association, Supplement 2, pp. 215-18, 1998.
13. Castle, M. and Coeytaux, F. A Clinician’s Guide to Providing Emergency Contraceptive Pills, Pacific Institute for Women’s Health, Los Angeles, CA, 2000.
14. See, for example, the New York State Catholic Conference’s opposition to that state’s proposed Family Health Care Decisions Act, at www.nyscatholicconference.org,, citing a “presumption in favor of the continued provision of food and water.
15. McGinley, L., and Fawcett, A., “Patients and Abortion Foes Clash on Stem-Cell Research,” The Wall Street Journal, June 21, 1999, p. A28.
16. See, for example, complaint in Amelia E. v. Public Health Council, No. 7062 (N.Y. Supreme Court, filed Decemer 2, 1994)
17. National Conference of Catholic Bishops, Appendix. See endnote 12.
18. Bucar, L. Merger Trends. See endnote 1
19. Henshaw, S. “Abortion Incidence and Services in the United States, 1995-96,” Family Planning Perspectives, Alan Guttmacher Institute, November/December 1998.
20. Bucar, L. Merger Trends. See endnote 1
21. Ikemoto, L. “When a Hospital Becomes Catholic,” 47 Mercer Law Review, 1087-1093, 1996
22. Piaggio, G. “Timing of Emergency Contraception with Levonorgestrel or the Yupze Regimen,” The Lancet, Volume 353, Number 9154, 27 February, 1999.
23. Simons, R. MD, presentation at May 18, 2000, seminar in New York City on provision of emergency contraception to sexual assault survivors at hospital emergency rooms.
24. Bucar, L. op cit, 1999.
25. Simons, R., MD “Emergency Contraception for Sexual Assault Survivors: A Survey of Hospital Emergency Rooms in Pennsylvania,” a master’s thesis supervised by the faculty of the John Hopkins School of Hygiene and Public Health, May 2000.
26. Jimenez, R. “Abortion dispute hits N.H. hospital: Woman transferred during emergency,” The Boston Globe, May 23, 1998, p. B1
27. “Mergers and Acquisitions: The Pace Slows, but Not the Impact,” in Catholic Health Restrictions Updated, Catholics for a Free Choice, pp. 4-6, 1999.
28. Labi. N. “Holy Owned: Is it Fair for a Catholic Hospital to Impose its Morals on Patients?” Time, November 15, 1999, pp. 85-6
29. Susan Berke Fogel, California Women’s Law Center, oral communication, October 28-29, 1999.
30. Ornstein, C. “Hospital merers tread fine line between religion, economics,” The Dallas Morning News, July 10, 1998.
31. Vincent, S. “Port Jeff Hospitals in Alliance,” Newsday, May 9, 1996, p. A25
32. “Common Values for Community Partnership,” Catholic Healthcare West, on file with the MergerWatch Project of Family Planning Advocates of NYS
33. Uttley, L. “Religious Hospital Mergers & HMOs: The Hidden Crisis for Reproductive Health Care,” Family Planning Advocates of NYS, 1997, pp. 22-23, and Final Judgement of Superior Court of New Jersey Chancery Division: Union County General Equity par, Docket No. UNN-C-97-99 “In the Matter of the Application of Elizabeth General Medical Center and St. Elizabeth’s Hospital for Approval of Consolidation,” on file with the MergerWatch Project of Family Planning Advocates of NYS
34. State Journal, Lansing, Michigan, December 20, 1996.
35. Lagnado, L. “Religious Practice: Their Role Growing, Catholic Hospitals Juggle Doctrine and Medicine,” The Wall Street Journal, February 4, 1999, p. 1
36. Coniglio, R. “Hospital merger called off: Genesee Memorial Group to take over ownership of St. Jerome,” The Daily News, Batavia, NY February 27, 1999, p. A1
37. Werthamer, C. “Hospital Mergers are not Created Equal,” The Daily Freeman, March 8, 1998, p. 1
38. See MergerWatch website, www.mergerwatch.org, and summary of new consumers protections achieved in Long Island hospital merger cases, October 1999 (on file with Family Planning Advocates of NYS)
39. Save Our Services Long Island summary of actions on Mid-Island Hospital and St. John’s Episcopal Hospital transactions, on file with the MergerWatch Project, Family Planning Advocates of NYS
40. New York Assembly Bills A. 9886 and A. 9887
41. Moore, J. D., “System divorces on rise,” Modern Healthcare, May 29, 2000.
42. Francis, T. “St. Vincent agrees to end sterilization,” Arkansas Democrat-Gazette, September 29, 1999
43. Religion, Reproductive Health and Access to Services: A National Survey of Women, conducted for Catholics for a Free Choice by Belden Russonello and Stewart, Washington, D.C., April 2000.