The misperception and misapplication of the First Amendment in the American pluralistic system: mergers between Catholic and non-Catholic healthcare systems

Journal of Law and Health, Spring, 2001 by Jason M. Kellhofer

I. INTRODUCTION

In 1999, the Republican presidential forerunner, Governor George W. Bush stated, "[I]n every instance where my administration sees a responsibility to help people we will look first to faith-based organizations, charities and community groups that have shown their ability to save and change lives. (1) As President Bush took office in 2001, this proposal became a "top priority." (2) "On January 29, 2001, President Bush fulfilled his promise to bring compassionate conservatism to Washington by signing an executive order creating a White House office aimed at linking religious organization with federal funding to run social service programs in their communities." (3) Though many have praised such efforts as consistent with the American model of a pluralistic society, others have harshly criticized President Bush for eroding the constitutional firewall between church and state. (4)

The actions of President Bush have highlighted the tensions present when government attempts to support the actions of faith-based organizations in the realm of societal interests. However, a more immediate and less recognized battle has been waged in the realm of healthcare. Recently, mergers between Catholic and NonCatholic healthcare services (hospitals and Health Maintenance Organizations (HMO's)) have raised concerns, some valid and some not. (5) As part of these merger agreements, Catholic entities most often require that certain services no longer be provided. (6) The services commonly removed are those that conflict with the moral stance of Catholic providers and generally include abortion, vasectomies, tubal ligations, use of the "morning after pill," and overall consultation regarding the use of contraceptives outside the bounds of marriage. (7)

This Note questions the wisdom of those who contend that Catholic health providers, to constitutionally qualify for government assistance or be permitted to merge with public entities, must be stripped of that which makes them most effective--their religious identity. (8) The threat to sectarian healthcare has steadily been on the rise as can be seen in actions such as the American Public Health Association's recent approval of a policy statement recommending more government oversight to preclude the dropping of reproductive services when Catholic and Non-Catholic hospitals merge. (9) Section II explores why these mergers occur and why certain services are subsequently dropped. Section HI applies a historical analysis to refute the argument that public and private are meant to remain separate. After establishing that pluralism has been and is presently the foundation of the American society and its healthcare, section IV evaluates whether the Establishment Clause or the Free Exercise Clause of the First Amendment is in danger of violation by mergers between Catholic and Non-Catholic hospitals. Finally, section V addresses the argument that Catholic healthcare mergers constructively deny women, most especially indigent women in rural areas, the right to reproductive services, namely abortion.

II. HOSPITAL MERGERS AND THE DIRECTIVES

In the late 1980s, a boom in hospital mergers began. Over forty percent of hospitals responding to a 1986 survey had merged or were considering a merger. (10) The vast majority of mergers took place between hospitals similar in structure; however, some mergers occurred and still are occurring between Catholic hospitals and Non-Catholic hospitals. (11) Largely, this was due to the changing nature of healthcare as the fee for service structure began to be replaced by a managed care approach. (12) Though there is no standard definition of "managed care," the basic idea is to coordinate all health care services an individual receives in order to maximize benefits and minimize cost. (13) This has, to varying degrees, been accomplished through the use of HMOs. (14)

The Nixon administration proposed in 1973, and Congress passed, the Health Maintenance Organization Assistance Act which created the term HMO and provided HMO's with federal funds to encourage development during their start up period. (15) "An HMO is a group that contracts with medical facilities, physicians, employers and sometimes individual patients to provide medical care to a group of individuals;" nonetheless, patients generally do not have any significant "out-of-pocket" expenses because this care is usually paid for by an employer at a fixed price per patient. (16) Athough by the end of the 1970's only five percent of Americans enrolled in prepaid arrangements, the pace of enrollment increased rapidly in the 1980's and by 1990, seventy-four percent of employees were enrolled in employer-sponsored HMOs. (17)

The downside is most HMOs are usually for-profit corporations with responsibilities to stockholders that take precedence over responsibilities to patients, the HMO directly and indirectly controls the amount of health care that the doctor is allowed to provide. (18) Currently, the majority of Americans with health insurance are enrolled in for-profit HMOs which represent seventy-five percent of all HMO plans. (19) A 1999 study published in the Journal of the American Medical Association found that for-profit HMOs provide a lower quality of medical care in comparison to non-profit HMOs. (20) Dr. Sidney Wolfe, Director of Public Citizen's Health Research Group noted that the money in a for-profit HMO goes to bureaucracy and profits and that, generally, "the more profit, the less care." (21)