Saving Roe is not enough: when religion controls healthcare.

• Author: Fogel, Susan Berke

INTRODUCTION

Gilroy, California, is a small town about thirty-three miles south of San Jose--the heart of Silicon Valley. (1) Gilroy historically has been an agricultural community. It has the highest rates of poverty and teen pregnancy in Santa Clara County. (2) It has one hospital. (3) There are five Ob/Gyns. (4) The hospital is the only site in Gilroy with the appropriate facilities to perform inpatient and outpatient tubal ligations, as well as abortions. (5) In 1999, Catholic Healthcare West purchased the hospital (6) and immediately told the physicians that they must abide by Catholic teachings; they had to stop performing sterilizations and abortions, and family planning supplies and emergency contraception were no longer available at the hospital or in the emergency room. (7)

The impact on the community was immense. Physicians were outraged at the interference with their medical judgment and the doctor-patient relationship over providing sterilizations. They organized, wrote letters to the editor, voted as a hospital staff to preserve sterilizations, and even appealed directly to the Bishop--all to no avail. (8)

Women, who had the time and could afford transportation, traveled to San Jose to get the services they needed. (9) The Gilroy doctors lost many insured patients, thereby reducing their incomes. (10) Low-income women, who could not manage the thirty-five-mile-each-way bus trip, were left with no alternatives. (11) One woman, pregnant with her ninth child, could not get the voluntary sterilization even though she had already signed her consent form. (12) According to her doctor, another pregnancy would "drastically increase the chance of life-threatening complications." (13)

January 22, 2004 marked the thirty-first anniversary of Roe v. Wade (14) which gave women the Constitutional right to seek abortion services until the fetus is viable. (15) Ever since Roe, many have been battling to keep that legal right. Access to abortion, however, and the broader scope of reproductive health services--from family planning to fertility services to HIV and AIDS prevention--also are threatened by an issue which receives much less public attention. This is the increased role in the health care marketplace of religiously-owned-and-operated hospitals and health care entities.

While our nation struggles with enormous issues of access to health care for millions of uninsured and underserved individuals, consumers of health care services nonetheless have developed reasonable expectations of certain "patient rights." Health care professionals are held accountable to their patients including the paramount principle of the sanctity of the patient-doctor relationship and patient-doctor communication. Patients expect that they will receive full and medically accurate information that will enable them to control their health care choices. (16) Individual health care providers have a reasonable expectation that they will be able to offer complete information to their patients and to make medical decisions for treatment options based on medical research and generally accepted standards of practice.

When a woman decides that the child she is about to deliver is going to be her last, she expects her physician will be able to perform a sterilization; when a woman is raped, she expects that the emergency room to which she is taken will give her emergency contraception to prevent pregnancy; when a woman of child-bearing years is scheduled to undergo chemotherapy that may destroy her future fertility, she expects to be told that she can harvest her eggs for later implantation; when a physician faces a patient with an ectopic pregnancy, she expects to be free to choose the best treatment for the patient; when a dying patient writes advance directives, she expects that they will be honored; when a patient goes to a health care professional, she expects that she will get all of the medically accurate information she needs.

The expansion in size and influence of religiously-controlled health systems is impeding patient access to comprehensive health services, including reproductive health services, patients' end of life decisions, and patients' access to research involving emerging medical technologies. The scope of services available at religiously-controlled hospitals, health clinics, or HMOs is determined by the dictates and principles of that religion, (17) even though these religious principles often conflict with accepted standards of medical practice and patients' right to self-determination.

The growing influence of these health systems has resulted in a proliferation of refusal clauses (also known as "religious exemptions" or "conscience clauses"). (18) These refusal clauses are statutory provisions that allow certain persons or entities to "opt out" of complying with laws and regulations based on their religious or moral objections. (19) While refusal clauses recognize that certain medical procedures may be antithetical to the beliefs of some individual providers, broad-based refusal clauses also have the potential to significantly burden patients by creating obstacles and absolute impediments to patients' ability to make their own health care decisions. Further, they thwart physicians from exercising their best medical judgment in treating their patients by prohibiting them from providing wanted and needed health care services. (20)

Refusal clauses also have been used to allow entities and individuals to opt out of providing medically accurate and relevant information to patients when the entity or health care professional has an objection. (21) Withholding medical information from patients violates basic principles of informed consent. It potentially harms patients by preventing them from making fully informed decisions and obtaining the medical care they need. (22) As the federal government proposes a greater public role and greater public funding for faith-based institutions, (23) it is critical to ensure that any group that provides medical care to the public and operates in the public sphere does not impose its religious beliefs on the recipients of those services, especially where such beliefs result in a denial of medical care to those who need it.

It is time for policymakers to act. They should guide government policies and facilitate the enactment of laws and regulations which will protect individual rights of both patients and individual health care professionals. Thoughtful policies should make a distinction between individual health professionals and their institutions. Entities that operate in the public sphere serving the general public, largely with public funds, should have to abide by generally accepted medical practice guidelines and to provide patients with full and medically accurate information, regardless of the beliefs of the health professional or institution. (24)

In the reproductive health context, it is possible to accommodate individual--as opposed to institutional--refusals to provide certain health services without imposing inappropriate burdens on patients' rights. (25) There should be limits, however, even to an individual health professional's right to refuse. In particular, no health care professional should be exempt from providing complete and accurate medical information, from making appropriate referrals, or from providing urgent care. (26) In rural or otherwise isolated or medically underserved areas, there may be no alternate source of care. In cases where there is a direct conflict and there is no alternative that does not unreasonably burden the patient, the medical needs of the patient should prevail, (27)

1. HEALTH CARE ENTITIES ABIDING BY RELIGIOUS RESTRICTIONS WIELD SIGNIFICANT CONTROL IN THE MARKETPLACE

   Over the past several years, religiously-controlled hospital systems have been the fastest growing hospital systems in the United States. (28) In 1999, Catholic systems reported a 25.1% increase in the number of Catholic-owned acute care hospitals and a 22.8% increase in staffed beds. (29) At the same time, for-profit systems decreased both the number of acute-care hospitals and the number of staffed beds. (30) The number of staffed beds in Catholic hospitals continued to rise in 2000, although the total number of hospitals declined through consolidation. (31)

   Religious restrictions are a significant obstacle for patients and physicians because of the size of religiously-controlled health systems. Five of the ten largest health care systems in the United States are Catholic. (32) Catholic institutions control the largest single group of non-profit hospitals in the United States. (33) Out of the top ten hospitals, seven were Catholic in 2002. (34) Ascension Health System is the largest non-profit system with net patient revenues of over $7.2 billion. (35) Nearly eighteen percent of all hospitals and twenty percent of all hospital beds in the United States are controlled by Catholic systems. (36) From 1990-2001 there were 171 mergers or acquisitions of secular hospitals by Catholic health systems. (37))

   Religious restrictions have proliferated with the expansion of religiously-controlled managed care plans. A survey conducted by Catholics for a Free Choice found that in the year 2000, there were forty-eight Catholic managed care plans nationally in which nearly 2.5 million privately and publicly insured individuals were enrolled. (38) Of these, fifteen Catholic HMOs in fourteen states contract to serve Medicaid populations. (39) In New York, Fidelis is a Catholic-owned, Medicaid-managed care plan with 65,000 Medicaid enrollees, but it does not cover family planning or other Medicaid-covered reproductive health services that violate Catholic teachings. (40) Even though Fidelis has contracted to provide referral services, some plan enrollees have had little to no guidance when they have sought certain services. (41) Access problems arise for women enrolled in...