In the absence of a comprehensive approach to national health reform, the health delivery market in the United States has been transforming itself. One of the most significant and least noticed changes in the current healthcare market has been the unprecedented growth in size and influence of religious health systems, and their impact on access to comprehensive health services, including reproductive health services, end of life decisions, and emerging medical technologies.
The growing influence of these systems and their supporters in federal and state governments has resulted in a proliferation of refusal clauses (also known as "religious exemptions" or "conscience clauses"). These are statutory provisions that allow people or entities to opt out of complying with laws and regulations based on religious or moral objections. Broad-based refusal clauses have the potential to significantly burden patients by creating obstacles and absolute impediments to their ability to make their own healthcare decisions, and to thwart physicians from exercising their best medical judgment in treating patients.
As the federal government proposes a greater public role and greater funding for faith-based institutions, it becomes even more critical to ensure that groups that serve the public and operate in the public sphere do not impose their religious beliefs on the consumers and recipients of those services. Attention from policymakers can protect individual rights of both patients and providers to make sound medical decisions, to obtain fully informed consent, and to act on their personal religious beliefs.
Scope and Size of Religious Health Systems
Religious hospital systems are the fastest growing hospital systems in the United States. Although some Seventh Day Adventist and Baptist hospitals do not provide abortion services and stress "abstinence only" practices to prevent pregnancy and transmission of HIV/AIDS, the largest systems with the greatest number and impact of restrictions on health services are Catholic health systems.
Catholic institutions control 622 hospitals-the largest single group of nonprofit hospitals. Five of the ten largest healthcare systems in the United States are Catholic. Ascension Health System is the largest nonprofit system in the country, with net patient revenues of over $6.4 billion. Nearly 18 percent of all hospitals and 20 percent of all hospital beds in the United States are controlled by Catholic systems.
Catholic hospital growth has outpaced that of for-profit systems. Catholic hospital net patient revenues grew 7.3 percent from 1996 to 1997, while for-profit revenues grew only 5.5 percent during the same period. California's largest hospital chain in 1999 was Catholic Healthcare West, which owned forty-six hospitals in California and facilities in Arizona and Nevada. Tenet Healthcare, the largest for-profit health system in the state, owned forty-two hospitals.
Religious hospitals, despite restrictions, deliver services largely with public funds. A study conducted by Merger Watch shows that in 1998 Medicare and Medicaid funding accounted for half of all revenue for religious hospitals. Other types of government appropriations (such as state-sponsored bonds) neared $700 million, bringing total public funding to $45.2 billion. Religious restrictions on access to care may even outlive Catholic ownership of the facilities. When Catholic systems sell their hospitals to nonsectarian operators, they typically require that the new owners continue to abide by Catholic Church doctrine. Tenet Healthcare, for example, purchased more than eight Catholic Hospitals and continues to restrict healthcare services in those facilities. The scope of these restrictions is sometimes time-limited, but at least one transaction, Daniel Freeman Memorial and Marina Hospitals in Los Angeles, made the restrictions a covenant that runs with the land.
Lack of access to reproductive health services is felt more strongly in rural areas and in low-income communities where alternative sources of care are often limited. In 1999 seventy-six Catholic hospitals, an increase of 65 percent in just three years, were designated by Medicare as sole providers because they are the only hospital in that geographic area. They qualify for enhanced Medicare reimbursement but do not provide all basic health services.
Restriction of services affects everyone, but low-income women are particularly vulnerable due to lack of resources to either pay out-of-pocket fees or to travel long distances to obtain services. When hospitals and clinics controlled by religious entities refuse to provide reproductive health services, the burden of providing them falls on other "safety-net" providers in the community-often family-planning clinics and county health services. Even when these facilities are reimbursed, they may lack the capacity to meet the increased need. Sexual assault response teams, for example, have difficulty meeting the needs of sexual assault survivors when local hospitals refuse to deliver emergency contraception to prevent a pregnancy from rape.
Restrictions have proliferated also from recent expansions of religiously affiliated managed care plans. According to a survey conducted by Catholics for a Free Choice, during 2000, forty-eight Catholic managed care plans existed nationally, and nearly 2.5 million Americans, including privately insured individuals, were enrolled. Of these, fifteen Catholic HMOs in fourteen states contracted to serve the Medicaid population. In New York, Fidelis, a Catholic-owned Medicaid-managed care plan, does not cover family planning or other Medicaid-covered reproductive health services that violate Catholic teachings and will not make referrals for these services.
Ethical and Religious Directives
The expansion of religious hospitals and health systems has a significant impact on access to health services-the scope of services available at religiously affiliated hospitals, health clinics, or HMOs is determined by the dictates and principles of that religion, not by medical guidelines or the needs of the community it serves. Healthcare delivery at Catholic health systems is governed by the Ethical and Religious Directives for Catholic Healthcare Services (Directives), a document developed and promulgated by the U.S. Conference of Catholic Bishops. The Directives address general principles governing the nature of patient-physician relationships, business relationships between secular and Catholic health facilities, and employer-employee relations. They contain very specific instructions on which reproductive health and end of life services may or may not be provided at a Catholic health facility.
The Directives promote prenatal care but prohibit almost all other reproductive health services. Contraceptive methods other than "natural family planning" are prohibited. Other banned services include most treatments for infertility, sterilizations for men and women, and abortion, without exception for rape or incest or even to save the pregnant woman's life. Moreover, the Directives caution about affiliating or associating with institutions providing abortions, warning that "Catholic health care institutions need to be concerned about the danger of scandal in any association with abortion providers." Treatment ofectopic pregnancy-which almost always endangers the health or life of the woman-is limited. For example, the least invasive medical interventions to end a tubal ectopic pregnancy, pharmaceuticals in lieu of surgery, may be prohibited by Catholic teachings. Imposition of the Directives also has implications for end of life decision making, requiring that advance medical directives be honored only to the extent that they do not conflict with Catholic teachings. Lastly, the Directives render it impossible to utilize new technologies that employ embryonic stem cells for both research and potential treatment.
A surprising application of the Directives involves religious health systems as landlords. It is not unusual for a hospital to own a medical office building; less known is that the Directives can be incorporated into leases. A medical group in Santa Rosa, California, reported that its lease required providers to "conduct their activities on the premises in accordance with the ethical and moral precepts and policies of [the] landlord including the Ethical and Religious Directives for Catholic Health Facilities."
The Directives often come into direct conflict with medical guidelines because they are based on religious beliefs, not on scientific research, medical trials, or health outcomes. Although it is entirely appropriate for individual patients to decide the role that religion will play in their personal healthcare choices, it is not appropriate for corporate healthcare providers to impose these beliefs above sound medical decision making. Health- and medical-related associations such as the American Public Health Association and the American Medical Association (AMA) have registered concern that mergers and affiliations with religious hospitals present serious obstacles to health options.
As a result of these restrictions, women's health services have become marginalized and fragmented with potential serious health consequences. For example, the American College of Obstetricians and Gynecologists (ACOG) recognizes that, unless contraindicated, an appropriate time to provide voluntary sterilizations is immediately after labor and delivery. Religious prohibition of sterilizations, however, may subject women to an unnecessary second procedure at a different facility, with attendant risk of infection, side effects of anesthesia, costs, and risk of additional pregnancies until the procedure is completed. This assumes that another accessible facility is available and that the second procedure is affordable and can be scheduled in a timely manner.
A small percentage of abortions are provided by hospitals, generally as medical necessities. Women who are medically fragile and at risk of complications and women in more advanced pregnancies may need the medical backup systems of a hospital. But religious restrictions may subject these women to the difficulty and expense of obtaining services out of their areas, as well as expose them to health risks.
ACOG and the AMA adopted guidelines requiring emergency contraception to be offered to prevent unwanted pregnancy to women who are survivors of rape. Yet a recent national survey of Catholic hospitals conducted by Catholics for a Free Choice found that only 28 percent provided emergency contraception in their emergency rooms to women who had been raped (with many hospitals first requiring pregnancy testing and/or police reports); and 55 percent would not dispense emergency contraception under any circumstances, with only half of these hospitals providing referrals. Two-thirds of these referrals proved to be dead ends.
This issue was addressed in a California Court of Appeal case, Brownfield v. Daniel Freeman Marina Hospital; 256 Cal. Rptr. 240 (Ca. Ct. App. 1989). Kathleen Brownfield was taken to the emergency room of a religiously sponsored hospital after being raped. Her suit alleged that the hospital failed to provide her with emergency contraception or to advise her that such a procedure was necessary within seventy-two hours of the rape to be effective. She sought declaratory and injunctive relief for the hospital's failure to provide information and a requirement that the hospital must either provide rape victims with information and access to contraception or discontinue treatment of rape victims.
The court found that, absent a statutory refusal clause, the patient maintains a common law right to self-determination in her treatment and this right prevails over an entity's moral or religious convictions. In addition, the court held that a rape victim may file a medical malpractice action for damages if she can allege that (1) a skilled practitioner of good standing would have provided her with information on and access to emergency contraception; (2) she would have elected such treatment if the information had been provided; and (3) damages have proximately resulted from the failure to provide her with information concerning this treatment option.
Implementation of the Directives has other health consequences. For example; women of childbearing age who require cancer treatments that could destroy their ability to produce eggs are often given the option to harvest eggs before treatment and preserve their future fertility. These protocols are prohibited at Catholic facilities.
Religious Restrictions in Managed Care
Religiously sponsored HMOs often do not cover prohibited services or provide information, counseling, or referrals to plan members who may want or need these services. Women in Medicaid managed care plans face particular challenges. The Balanced Budget Act of 1997 allows managed care plans that refuse to provide reproductive health services on the basis of moral or religious objections to serve Medicaid patients. A broad refusal clause allows them to opt out of "provid[ing], reimburs[ing] for, or provid[ing] coverage of, a counseling or referral service if the organization objects to the provision of such service on moral or religious grounds." As a result, many women of childbearing age are enrolled in plans that mandate refusals to provide services central to their healthcare.
Access problems also arise when nonsectarian health plans contract with sectarian hospitals and other entities that restrict access. For example, a woman desiring a tubal ligation at the time of labor and delivery may need to obtain these services separately if the hospital covered by the health plan refuses to provide them, or she may have to pay more out of pocket in copayments or other additional charges to obtain the services concurrently at an out of network hospital. Often, consumers are unaware of these access limitations until the need for services arises and must contend with managed care gatekeepers and ideological ones as well.
State legislatures now are requiring employers to provide contraceptive coverage as part of their prescription drug benefits, but many of these statutes contain refusal clauses. Interestingly, in two cases Catholic entities sued, claiming the refusal clauses are not broad enough. Catholic Charities v. Superior Court, a California case, will soon be heard in the California Supreme Court, and a similar suit was recently filed in New York. Lower courts in California upheld the contraceptive coverage requirement.
In the last congressional session, the Abortion Non-Discrimination Act (ANDA) was introduced and passed in the House of Representatives but not in the Senate. This broad federal refusal clause would have explicity preempted state and local laws and permitted individual providers and a wide range of healthcare entities to opt out of performing, providing coverage for, or paying or making referrals for induced abortions, without exceptions for the life or health of the mother or for cases of rape or incest. Hospitals could turn away women who needed emergency abortions because they were hemorrhaging or experiencing heart failure-despite federal and state laws that generally require hospitals to treat patients in medical emergencies. Also, although Medicaid covers abortion in cases of rape and incest or to save the life of the mother, under ANDA, entities and providers would have been able to refuse to provide these services or even tell women how to access them. This bill is likely to be reintroduced in the 108th Congress.
Analysis of Refusal Clauses
Refusal clauses first appeared as a significant issue around the time of Roe v. Wade. The 1973 Church Amendment, named after Senator Frank Church, allowed healthcare providers to opt out of providing abortions or sterilizations and mandated that practitioners could not be discriminated against in the workplace for performing or refusing to perform abortions. More recent refusal clauses go beyond individual beliefs and apply to entire corporate health systems, enabling the whole system to opt out of providing services and/or offering referrals or counseling about how to obtain services elsewhere. The Balanced Budget Act of 1997 provision covering Medicaid managed care discussed above is an example.
The ACLU Reproductive Freedom Project proposed an analytic framework for assessing refusal clauses and contains the following guidelines:
1. Does the refusal place burdens on people who do not share the beliefs that motivate the refusal? The more the burdens fall on such people, the less acceptable any claimed right to refuse.
2. Is the objector a sectarian institution engaged in religious practices, or is it an entity-whether religiously affiliated or not-operating in a public, secular setting? The more public and secular the setting, the less acceptable the institution's claimed right to refuse.
As these guidelines suggest, entities operating in the public world ought to play by public rules, whereas churches, temples, mosques, and other institutions whose purpose is to practice and teach religious doctrine ought in general to be free of the requirements of law repugnant to their beliefs.
In the reproductive health context, it is often possible to accommodate individual-as opposed to institutional-refusals to provide certain health services without imposing inappropriate burdens on others. 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.
Using this analysis, the rights of individual healthcare providers can be balanced with the rights of individual patients. In rural or otherwise isolated or medically underserved areas, there may be no alternate source of care. In cases where there is such a direct conflict and there is no alternative that does not unreasonably burden the patient, the medical needs of the patient should prevail.
The continuing trends of health system mergers, increased federal funding to sectarian institutions, and proliferation of refusal clauses pose a very real threat to public health and the rights of both patients and providers. We recommend adoption of the following principles for assessing the appropriateness of refusal clauses:
l Respect for individual conscience: All patients and providers-those who want to provide a full range of healthcare services and those who do not want to provide certain healthcare services-deserve respect for acts of personal conscience.
l Informed consent: All patients are entitled to full, informed consent that includes all relevant information necessary for them to make good healthcare decisions.
l Priority of the patient: If a conflict exists between the needs of the patient and the beliefs of the healthcare entity or provider and there is no reasonable alternative, the medical needs of the patient must prevail.
Susan Berke Fogel is an attorney in private practice specializing in women's rights and health law and policy for people with low incomes. She is the former legal director of the California Women's Law Center. Lourdes A. Rivera is managing attorney of the Los Angeles office of the National Health Law Program, a national nonprofit law firm working to increase and improve access to quality health care on behalf of people with limited incomes.