This fall, California became the first state to pass a law requiring health care plans to take the initiative and disclose upfront whether they refer patients to doctors or hospitals that do not provide sterilization, infertility treatments, abortion, contraceptive services or emergency contraception. The law is a reaction to the enormous rise of Catholic-run health care programs that do not make vital women’s services available and is the first of two in that state to deal with the church-state conflicts in women’s medical care.
“At the very least, consumers need to know that restrictions are in place,” said Susan Berke Fogel, legal director of the California Women’s Law Center.
The relatively simple disclosure requirement represents a breakthrough for women’s health advocates. These groups have fought for years to protect women of differing religions and of different levels of adherence to Catholic teaching from a loss of reproductive health care when religion-based and -operated health care programs sign agreements with secular agencies or buy up secular hospitals.
In fact, in this era of dramatic changes in the nation’s health care system, Catholic-affiliated institutions are often the only medical care providers in a region, thus leaving patients of all religious faiths (or none) unable to obtain convenient or affordable contraceptive care.
Catholic health care institutions, governed by the Ethical and Religious Directives for Catholic Health Care of the National Council of Bishops, can prohibit women patients from getting basic reproductive health care services, regardless of their personal religious beliefs or individual preferences.
More than half of the 48 Catholic-operated health maintenance plans do not provide contraceptive coverage–regardless of the background or circumstances of plan participants, according to Patti Miller, author of a report released by Catholics for Free Choice, a nonprofit pro-choice advocacy group in Washington, D.C.
That proportion is “substantially below” the 93 percent of other health maintenance organizations that provide contraceptive coverage, the report said. In addition, 48 percent of the Catholic plans did not pay for tubal ligations, one of the most common forms of surgical sterilization, and abortion was excluded in nearly all of them. Some rare exceptions were made in states that require Medicaid plans to make provisions for abortions in specific circumstances.
While other religions may also provide health care, none do so on the scale of the Catholic church, with affiliates controlling 621 hospitals and 85 million patients in 1999, 282 health-related organizations and 62 health care systems, and with a combined total of 757,000 employees.
Other Catholic HMOs send patients to third-party providers or offer limited contraceptive services. The Family Health Plan of Catholic Healthcare Partners in Ohio, Illinois and Michigan, for example, offers a “family planning rider” for tubal ligation and contraception. Abortion is not covered under any circumstance.
According to Miller, two of the 13 Catholic health maintenance organizations with Medicaid contracts failed to make referrals or arrangements for reproductive health care, affecting over 87,000 people.
Health maintenance organizations that are not operated by the Catholic system can also have contracts for in-patient care with one of the nation’s 621 Catholic hospitals, which can preclude abortion or tubal ligation. This adds additional difficulties for women in rural communities, where other facilities are distant. Catholic hospitals in the U.S. claimed a 16-percent share of total patient care in 1999.
In addition to HMOs, the rapid expansion of Catholic hospitals through purchase, merger and business arrangements has resulted in these religious-affiliated institutions now constituting the nation’s largest single group of nonprofit hospitals, according to the Catholic Health Association of the United States.
Nationwide, of the 20 largest nonprofit systems, 10 are Catholic. The mega-system Catholic Healthcare West in California added 12 hospitals in 1999 for a total of 48 hospitals, 8,172 beds and $5.9 billion in assets. Still it only rates the third-largest Catholic system in the nation.
In a major success for women’s health care advocates, California enacted further legislation to protect women from the sudden elimination of services that can result when secular hospitals are purchased quietly by Catholic institutions. In the northern California city of Eureka, a developing situation involves a possible hospital purchase by a Catholic health care provider, as it has in scores of communities across the country in the 1990s.
Such information is often kept secret, but in this case, information is beginning to trickle out to the public and causing alarm, although no one knows whether or which reproductive health services will change. But this could well become the first test case of a new California law calling for public hearings into how women’s services would be affected by a potential hospital sale.
Now, before a potential sale of a nonprofit hospital, a California law signed in October authorizes the attorney general to conduct a public hearing, and, by proposed regulations, to inquire into how reproductive health services would be affected by the sale or other major transfer of assets.
But it should be possible to accommodate both the Catholic mission and a community’s needs, according to Kathleen Boozang, associate dean and director of the Catholic Health Law and Public Policy Program at the Seton Hall Law School in New Jersey. She did not provide details on how such an accommodation might be reached, however. “We’ve had communities that are able to work things out. We know it has happened,” she said.
“Catholic health care has long been one of the most viable and reliable safety nets for communities,” said Boozang, noting the history of Catholic hospital service to the poor. “What we want is for all of a community’s health care needs to be fulfilled.”
She argues that the First Amendment freedom of religion protects the beliefs of the Catholic Church, as well as those of individual conscience.
The issue of conscience looms large. Catholic and other religiously affiliated health care facilities argue that they should be exempt from laws that would require them to provide abortions or cover the cost of birth control.
But the Religious Coalition for Reproductive Choice, a pro-choice advocacy group in Washington, D.C., counters that religious exemptions, often known as “conscience clauses,” are unjust if they eclipse the individual conscience or if the religious entity serves the general public.
Currently, Catholic Charities in California is suing the state to stop enforcement of the new Contraceptive Equity Act that requires coverage of family planning measures as a health care benefit because, it claims, the religious exemption is too weak.
In general, when communities grapple with religious control of their health care, legal strategies have been hampered by a lack of laws to protect consumers.
“You have a situation where medical decisions are being dictated by forces which have nothing to do with the standard of care,” said Fogel, of the California Women’s Law Center. “If hospitals eliminated blood transfusions or required all boys to be circumcised, there would be an outcry. The fact that it’s women’s health has meant that some leaders have decided that it’s okay.”
In an effort to brainstorm about possible solutions, the California Women’s Law Center and Merger Watch established a 36-member national advisory board that has been meeting since last year. The group identified as an important issue the use of government funds at religious health care institutions.
Catholic Healthcare West, for example, receives $1.6 billion in California state-issued bonds. Lois Uttley, director of the MergerWatch Project of the Family Planning Advocates of New York State, is launching a project to investigate the full scope of government benefits, a follow-the-money approach that might provide tools to loosen the grip of powerful religious gatekeepers on women’s reproductive health care.
Cynthia L. Cooper is a free-lance writer based in New York, specializing in reproductive health care issues.
See also last week’s story: