Expanding conscience, shrinking care: the crisis in access to reproductive care and the Affordable Care Act's nondiscrimination mandate.

• Author: Deutsch, Elizabeth B.

NOTE CONTENTS INTRODUCTION I. THE EXPANSION OF CONSCIENTIOUS OBJECTION AT THE FEDERAL AND STATE LEVEL A. Origins of the Conscience Clause B. The Expansion of Federal Laws and the Ethical and Religious Directives C. The Reach of State Conscience Clauses D. The Directives Threaten To Increase Their Requirements and Reach II. THE RISE OF CATHOLIC HOSPITALS IN THE CONTEXT OF POST-ACA HOSPITAL MERGERS A. Post-ACA Hospital Consolidation B. The Rise of Catholic Hospitals and the Ethical and Religious Directives in the Post-ACA Merger Climate III. THE AFFORDABLE CARE ACT'S COMMITMENT TO NONDISCRIMINATION PRINCIPLES A. Section 1557's Expansive Definition of Sex Discrimination in Healthcare: Reproductive Access as Sex Equality Under the Law 1. Section 1557's Definition of Sex Discrimination 2. Protections Above the Equal Protection Clause: Section 1557 in the Context of Other Statutory Protections Against Pregnancy Discrimination 3. Expanding the Theory of Pregnancy Discrimination as Sex Discrimination To Reach Reproductive Care Under Section 1557 B. Balancing Sex Equality Concerns and Religious Liberty C. Section 1557 in Light of Other Federal and State Laws 1. Section 1557 in Light of RFRA 2. Access to Information about Health Status in Light of Other Federal and State Laws 3. Access to Emergency Abortion in Light of Other Federal and State Laws CONCLUSION INTRODUCTION

Tamesha Means was just eighteen weeks pregnant when her water broke. (1) She rushed to the only hospital in the county, Mercy Health Partners Muskegon, Michigan. (2) But the doctors there did not tell her that because of her condition, the fetus would not survive. (3) They did not tell her that continuing with the pregnancy would pose serious health risks, (4) and they did not tell her that the safest choice would be to terminate the pregnancy. (5) Instead, they sent her home and told her to see her doctor in a week or so. (6)

Means returned to the hospital the next day. She was bleeding this time, with painful contractions, and a fever. (7) The doctors suspected that Means was suffering from a bacterial infection that could be fatal. (8) But again, they sent her home. (9) Later that day, Means returned to the hospital a third time--now with unmistakable signs of infection. (10) The doctors were preparing, yet again, to turn her away when she began to deliver. (11) The baby died immediately after delivery, (12) and Means was left sick with a potentially deadly infection. (13)

Why did Mercy Health Partners refuse to provide care to Means? The hospital adhered to the Ethical and Religious Directives for Catholic Health Care Services. (14) The Directives are seventy-two numbered instructions that outline

the ethical and religious imperatives for Catholic healthcare providers. (15) As relevant to Means's case, the Directives specify:

* Abortion (that is, the directly intended termination of pregnancy before viability or the directly intended destruction of a viable fetus) is never permitted. (16)

* The free and informed health care decision of the person... is to be followed so long as it does not contradict Catholic principles. (17)

* A Catholic health care institution should provide prenatal, obstetric, and postnatal services for mothers and their children in a manner consonant with its mission. (18)

The Directives instructed Mercy Health Partners not to facilitate miscarriage for Tamesha Means, even if there was no chance that the pregnancy would result in a viable live birth. (19) The Directives also prevented the hospital's physicians from informing Means about treatment options that were inconsistent with the Directives but might be available elsewhere. (20) Compounding the problem, Means was given no indication that Mercy Health Partners, as a religiously affiliated hospital, might withhold information, so she continued to seek treatment from the same doctors as she grew sicker. (21)

Tamesha Means's story is not unique. Catholic hospitals provide fifteen percent of hospital beds in the United States, and an estimated one in six Americans receives medical treatment at a Catholic hospital each year. (22) Because these hospitals both restrict the services they provide and may not inform patients about those restrictions, many hospital visitors may not even know that a hospital has a religious affiliation or that the Directives adopted by such hospitals constrain treatment, referral options, and the provision of information. Further, the Directives prevent physicians who wish to provide comprehensive care to their patients from doing so. (23)

This Note explores women's access to healthcare in the contemporary landscape of hospital consolidation and the expansion of medical refusals. In recent years, conscience clauses have increasingly enabled religious hospitals to refuse reproductive care to their patients. Access to reproductive care has been further compromised by an unprecedented wave of mergers between religious and nonsectarian hospitals. These mergers have spread the Directives to more and more hospitals across the country. These two trends together have limited women's access to necessary reproductive care, as well as to critical information about their health.

But there is a remedy. In the text of the Affordable Care Act (ACA), Congress expressed a novel commitment to nondiscrimination in healthcare, which, for the first time, may recognize as sex discrimination the kinds of refusals of health status information and reproductive care that have increasingly taken hold across the country. The ACA requires us to strike a better balance between the interests of religious liberty and the interests of sex equality in access to healthcare.

The United States is at an inflection point in deciding to what extent the law will allow religious claims to trump other rights and interests. Controversial conscience claims aired in the Supreme Court last term in Burwell v. Hobby Lobby (24) have received widespread attention. However, Part I illustrates another conflict playing out more quietly in healthcare across the country: the rights of patients to safe and effective medical treatment and information are colliding with the religious liberty of Catholic healthcare providers to withhold services and information. (25) Part I shows that federal and state laws have steadily expanded to license medical refusals by more entities that provide and pay for healthcare. Furthermore, this Note is the first to demonstrate that the broadening Directives, which place higher limits on the care available at Catholic and Catholic-affiliated hospitals, have matched the statutory expansion of rights to medical refusals at every step.

Recent developments in the healthcare market have, in the wake of the ACA, exacerbated the problem of medical refusals. Anxiety among healthcare providers about their fate in the post-ACA world has accelerated consolidation to record levels. Today, integrated-care networks incentivized by the ACA aim to wring out excess costs as hospitals try to regain pricing power.

As Part II demonstrates, this push to consolidate has increased the dominance of the Directives in healthcare systems across the United States. This push, together with the well-documented growth of Catholic hospital systems, means that the exemptions sought by religious healthcare providers will have a larger impact than ever before. If these two trends--the expansion of conscientious objection and the consolidation of U.S. hospitals--continue without intervention, they will lead to the dramatic reduction of services, referrals, and information for female patients regarding their reproductive care.

The trend toward expanded refusals and consolidated hospitals has, to date, vindicated only the religious liberties of healthcare providers. These interests have not been sufficiently balanced against federal commitments to access and equality for the many women affected by these refusals. However, a little-explored provision of the Affordable Care Act, lost among the high-profile challenges to the Act in Hobby Lobby and King v. Burwell, (26) expresses a deep commitment to antidiscrimination principles in access to healthcare. It demands a more appropriate balance between the rights of female patients seeking healthcare and information on their health status, on the one hand, and the rights of providers to conscientious refusal, on the other. The ACA's nondiscrimination provision should be taken seriously as part of the Act's broad vision of healthcare reform. That the ACA has also incentivized the contemporary merger frenzy and created a push for clinical integration, thereby extending the Directives' reach, makes it especially important that the Act's antidiscrimination commitments be allowed to take full effect.

Part III develops an account of the ACA's non-discrimination provision, Section 1557. As Part III.A shows, this provision establishes for the first time a robust definition of sex discrimination in healthcare. Section 1557 incorporates Title IX's private right of action for patients and its definition of sex discrimination, which deems pregnancy discrimination to be discrimination on the basis of sex. The ACA thus represents a paradigm shift in how we should conceive of sex equality in healthcare. Part III.B discusses how Section 1557 should be viewed as a federal counterweight to conscience protections, requiring us to reassess the balance between sex equality and religious liberty. It demonstrates how such a balance would increase access to reproductive information and potentially to underlying services without infringing on critical conscience protections. Section 1557 should be understood to limit overly broad and far-reaching refusals enabled by expanding state laws and commercial relationships that increasingly connect religious and nonsectarian hospitals. Part III.C then analyzes how this provision might be applied to emergency reproductive care and...