Crisis of conscience: reconciling religious health care providers' beliefs and patients' rights.

AuthorWhite, Katherine A.

In this note, Katherine A. White explores the conflict between religious health care providers who provide care in accordance with their religious beliefs and the patients who want access to medical care that these religious providers find objectionable. Specifically, she examines Roman Catholic health care institutions and HMOs that follow the Ethical and Religious Directives for Catholic Health Care Services and considers other religious providers with similar beliefs. In accordance with the Directives, these institutions maintain policies that restrict access to "sensitive" services like abortion, family planning, HIV counseling, infertility treatment, and termination of life-support. White explains how most state laws protecting providers' right to refuse treatments in conflict with religious principles do not cover this wide range of services. Furthermore, many state and federal laws and some court decisions guarantee patients the right to receive this care. The constitutional complication inherent in this provider-patient conflict emerges in White's analysis of the interaction of the Free Exercise and Establishment Clauses of the First Amendment and patients' right to privacy. White concludes her note by exploring the success of both provider-initiated and legislatively mandated compromise strategies. She first describes the strategies adopted by four different religious HMOs which vary in how they increase or restrict access to sensitive services. She then turns her focus to state and federal "bypass" legislation, ultimately concluding that increased state supervision might help these laws become more viable solutions to provider-patient conflicts.


Religious health care facilities and networks form the largest category of nonprofit providers of health care in the United States.(1) While many different denominations participate in providing health care to the public, Roman Catholic institutions play an especially significant role. Catholic health care organizations combined control more than twice the market controlled by Columbia/HCA, the largest commercial health care entity.(2) Many of the 600 Catholic hospitals in the United States have large networks of health care providers affiliated with them.(3) As religious health networks expand their services to offer managed care services to the public and to Medicaid recipients, providers' religious beliefs will increasingly influence patient access to services. The Catholic Church manages its health care organizations according to the Ethical and Religious Directives for Catholic Health Care Services, which define church opposition to abortion, sterilization, family planning, the morning after pill, HIV counseling that includes information about condom use, infertility treatments, and termination of life-support.(4)

In conflict with the Catholic directives, various state and federal laws require health care providers to make "sensitive" services available. For instance, the federal Medicaid statute specifies that recipients shall have access to family planning services.(5) Some state laws require private insurers to cover contraceptive services, and others require hospitals to provide rape victims with information about the morning after pill. Courts have differed when asked to resolve conflicts between providers' beliefs and patients' legal rights to determine medical treatment decisions. In Part II, I will discuss these "sensitive" services, religious teachings regarding them, statutes protecting religious providers' objections, and case law considering patients' rights.

The United States Constitution offers little clear guidance for resolving these conflicts, since both the Free Exercise Clause and the Establishment Clause of the First Amendment influence whether state accommodation of religious beliefs is mandated, prohibited, or merely permitted. Patients also have constitutionally protected rights to control reproductive decisions in some circumstances. In Part III, I will explore the constitutional Free Exercise and Establishment Clause analyses of the provider conscience/patients' rights conflict, and consider the role of constitutional protections of privacy.

In practice, religious health care organizations have found different innovative strategies for accommodating patient demands while preserving the integrity of religious beliefs. I will discuss these strategies in Part IV and present an overview of how four different religious HMOs have chosen to resolve these provider-patient conflicts in practice.

However, such solutions are not universally acceptable, and federal and state legislatures have enacted legislation allowing patients to refer themselves for sensitive services, bypassing their religious providers altogether. In Part V, I will explore whether these legislative bypass solutions have proven effective in guaranteeing patient access to care, and how increased state supervision might help make these laws into more viable solutions to provider-patient conflicts.


    1. Abortion

      Religious health care providers' objections to abortion are well known, and federal and most state laws allow providers to refuse to participate in providing abortions. Catholic policies on religion and health care state that "[a]bortion ... is never permitted.... Catholic health care institutions are not to provide abortion services, even based upon the principle of material cooperation."(6) The teachings of the Church of Jesus Christ of the Latter Day Saints hold that Mormons should not participate in abortion procedures unless the pregnancy results from rape or incest, or it poses a threat to the pregnant woman's life.(7) Other religious providers, including Seventh Day Adventists and Baptists, have religious objections to abortion under most circumstances.(8)

      Because religiously-sponsored HMOs and hospital networks restrict access to abortion based on their institutional beliefs, and only thirty-six percent of all hospitals provide abortion services, women seeking an abortion must cope with a shortage of providers willing to perform them.(9) While most abortions in the United States are performed in outpatient clinics and doctors' offices,(10) patients seeking services outside of metropolitan areas face difficulty in locating providers of any kind.(11)

      In contrast, insurance coverage for abortion is widespread. Although no state laws require private insurers to provide abortion coverage, between eighty-five and ninety-two percent of conventional fee-for-service plans, and ninety percent of HMOs, cover the procedure.(12) Despite access difficulties and mounting legislative restrictions on the availability of abortion,(13) it remains a common procedure, with over 1.4 million women choosing to terminate unwanted pregnancies each year.(14)

      Fifteen states provide funding for women receiving Medicaid to obtain abortions in most circumstances; five states fund abortions under conditions when the pregnancy endangers the woman's life or health, or when the pregnancy results from rape or incest.(15) These state laws appear to require Medicaid managed care plans to reimburse health care providers for abortion, even when a religious organization opposed to abortion sponsors the plan. Only a few states limit abortion funding for women on medical assistance to cases where the pregnancy endangers their lives, the only situation when the Catholic Ethical and Religious Directives permit abortion.(16) These states' laws conflict with federal Medicaid policies, which require states to provide funding for abortions when the pregnancy results from rape or incest or threatens the pregnant woman's life.(17)

      However, the apparent conflict between Medicaid coverage and managed care organizations' religious beliefs is largely resolved by laws that allow providers to refuse to provide abortion services. Both federal and state laws include "conscience clauses," which acknowledge health care providers' rights to refuse to participate in providing services they object to on moral or religious grounds. These laws vary dramatically: Some allow individual health care practitioners to refuse to participate in specific procedures, like abortion, while others provide much broader protection for individual, institutional, and HMO religious objections. Some allow providers to refuse to participate in a specific service, like abortion, and some allow providers to refuse to refer or pay for such services.(18)

      Since these laws vary so much, I will discuss them repeatedly in the context of each health service. However, there are several significant similarities. When conscience clauses were initially enacted by Congress and state legislatures in the mid-1970s, most provided specific exemptions for abortion, and a few exempted sterilization as well.(19) In 1973, Congress passed the first federal law (known as the Church Amendments) protecting health care providers' right to object on moral or religious grounds to performing certain procedures.(20) Spurred to act by a preliminary injunction issued by a Montana federal district court, which required a hospital to violate its Catholic principles by sterilizing a patient, Congress passed the law in time for the court to dissolve the injunction before the hospital had to appeal.(21) The statute states:

      The receipt of any grant ... [under specified federal laws] by any individual or entity does not authorize any court or any public official or other public authority to require-- (1) such individual to perform or assist in the performance of any sterilization procedure or abortion if his performance or assistance in the performance of such procedure or abortion would be contrary to his religious beliefs or moral convictions; or (2) such entity to-- (A) make its facilities available for the performance of any sterilization procedure or abortion if...

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