February 2012 Church & State | Featured

Imagine the dire consequences if some of the poorest residents of Louisville, Ky., were denied access to birth control and other basic health care needs because the local public hospital was operating in obedience to a religious agenda.

Whatever you pictured could easily have become reality had a proposed merger been approved that would have placed a public hospital that is the primary source of care for low-income Louisville residents under the majority control of a Roman Catholic health care group. The merger might have meant strict limits on reproductive care as well as restrictions on patients’ end-of-life directives that don’t comply with church doctrine.

The merger plan originally called for a hospital affiliated with the University of Louisville to combine with Jewish Hospital & St. Mary’s HealthCare and the St. Joseph Health System in Lexington. The university hospital is particularly critical to the surrounding community because it sets aside approximately $35 million annually to provide services that include charity health care.

When the plan came to the attention of the public, there was considerable outcry – including from Americans United, which sent a letter to Gov. Steve Beshear and Attorney General Jack Conway opposing the scheme on constitutional grounds.

When Beshear decided to block the merger on Dec. 30 following, in his words, “exhaustive discussions and research,” Americans United celebrated the victory.

“[Blocking the merger] protects the rights of doctors and patients without discriminating based on religious doctrine,” Alex J. Luchenitser, associate legal director for Americans United, told the Louisville Courier-Journal.

AU’s Louisville chapter was also pleased with the decision.

“We celebrate the decision of the governor for several reasons,” Chapter President Paul D. Simmons told Church & State.

“He reflected AU’s argument that the merger would involve an unacceptable level of entanglement between religion and medicine. No physician should be required to pass a religious belief test before being able to treat patients.

“The merger displaced the standards of medical care with the dogma of religious belief,” continued Simmons, a Baptist minister and former president of the AU Board of Trustees. “The fact that a public hospital was to become dominated by the Catholic Church was also a church-state concern. Kentucky taxpayers had supported the U of L hospital for years and now would be ceding governance to a Catholic religious entity.

“Governance was combined with ideology to such a degree that the merger was untenable, in my judgment.”

After the merger, all the facilities would have come under the control of the Denver-based Catholic Health Initiatives – with Louisville Archbishop Joseph E. Kurtz getting final say over the arrangements. The combined hospital systems would have operated in compliance with the Catholic bishops’ Ethical and Religious Directives, a set of mandates reflecting church teaching.

Needless to say, this merger has been controversial in Kentucky. In response, University Hospital officials tried to do damage control. According to the Louisville Courier-Journal, they issued a statement saying the hospital “will not be required to follow” the directives but will agree by contract not to perform three church-forbidden procedures – elective sterilizations, elective abortions and euthanasia.

The Courier-Journal reported that if followed, that position would have represented a much narrower stance on the Catholic directives than officials had expressed earlier.

“In previous statements,” said the newspaper, “officials have said all the merging hospitals would ‘adhere to,’ ‘honor, or would be ‘abiding by’ the directives, not just some of them.”

AU’s legal experts were not swayed by the semantic change.

Ayesha N. Khan, Americans United legal director, told the newspaper the move seems like an effort “to make this [merger] more politically palatable” and maybe set up a legal defense in the event of a likely lawsuit.

“They’re trying to make the change in services a little less extreme,” she said. “But it doesn’t sound to me like it changes the bottom line – which is that they are shaping at least some of their services around Catholic ideology.”

Americans United sent a Dec. 14 letter to Beshear, Conway and other state officials detailing the church-state pitfalls of the merger. AU’s Luchenitser and Madison Fellow Brooke R. Hardy said operating a public hospital under sectarian guidelines would violate both the U.S. and Kentucky constitutions.

“Under the terms of the merger, University Medical Center, Inc., would be required to comply with Catholic health care directives against sterilizations, abortions and other reproductive procedures,” the AU letter said. “Because of the Catholic Church’s opposition to sterilization, for example, University Hospital will no longer offer certain medical procedures, like tubal ligations, and certain medications, like birth control, that it currently provides.

“Revising a public hospital’s policies to adhere to a specific religious doctrine most certainly violates the Establishment Clause,” the letter continued. “Such a policy change would violate the No-Preference Clause of section 5 of Kentucky’s Constitution as well; indeed, the Kentucky Supreme Court has interpreted Kentucky’s Constitution to prohibit governmental support of and involvement with religion even more strictly than does the U.S. Constitution.

“While a constitutional violation of any kind is troubling enough,” the letter concluded, “the fact that University Hospital is the Louisville area’s main indigent care facility magnifies the injury the proposed merger would inflict on the community…. That service should not be infused with or limited by religious considerations. If University Hospital stops offering certain services because of religious strictures, indigent and low-income patients may not have other safe and reliable sources for those services.”

Perhaps Beshear was moved by these words, or perhaps it was the cumulative weight of pressure from diverse groups including Planned Parenthood Kentucky, the ACLU of Kentucky and the Kentucky Alliance Against Racist and Political Repression. Whatever the reason, Beshear made the right decision.

“There are a number of significant legal and policy concerns that have been raised about this proposed merger,” Beshear said. “But one of the most troubling for me is the loss of control of a public asset. The university hospital is a public asset with an important public mission. And if this merger were allowed to happen, U of L and the public would have only indirect and minority influence over the new statewide network.… In my opinion, the risk to the public outweighed the potential benefits.”

When Beshear made his decision, it seems Catholic Health Incentives administrators took it in stride, at least publicly, and suggested that they haven’t given up. The hospital merger partners said in a statement that they “look forward to delivering a transaction in a form that the governor would feel compelled to approve.”

If Beshear were to reverse course, he would not only be ignoring the church-state issues, but according to an analyst hired to examine the possible merger, the plan would be fiscally irresponsible. Northwestern University economist David Dranove concluded that University Hospital could confront “a dire financial future” if the merger went through.

“The state and local governments should do something to make sure the local interests continue to be served,” Dranove said.

Although Dranove didn’t examine church-state issues, concentrating instead on economics, he found a number of problems when he examined the merger documents.

“As hospitals consolidate into accountable care organizations, those that remain independent may be shut out of the Medicare and private insurance markets. If this were to occur to the University of Louisville Hospital, the financial consequences would be dire,” Dranove wrote.

Those financial consequences included the potential repurposing of a trust fund set aside at the University of Louisville Hospital for indigent care. Dranove said that the hospital is guided by a local governing board that is committed to admitting all patients regardless of their financial situation, while also running a trauma center and educating medical school students and residents.

The board oversees a $35 million annual trust funded by local government that is intended to offset the costs associated with the hospital’s missions, Dranove said.

If the merger were to take place, control of University Hospital would be turned over to a board chosen by the merged corporation that “will no longer be committed to the same mission as previously,” Dranove said.

Despite all the praise for Beshear’s decision to block the merger and all the negatives that would come if it took place, the Democratic governor said the proposal is still not entirely off the table. As of Church & State press time, Beshear had yet to change his mind on the merger, but he met with hospital leaders to discuss possible alternatives to the original scheme.

After the session, he issued a statement saying, “We remain committed to supporting University Hospital in reaching our common goals of care for our most vulnerable citizens while maintaining sound financial footing for the institution.”

In the hope that Beshear doesn’t change his mind, here are a few things he might want to think about, in the words of other groups that opposed the merger.

The Fairness Campaign, a gay rights advocacy group, said Beshear’s decision calmed fears about whether employees would be able to keep same-sex-partner benefits on health insurance, according to the Courier-Journal. Merger partners had said the current benefits would be retained in 2012, but some said there was no guarantee that would remain the case under Catholic directives, according to the newspaper.

“I’m more than a little shocked, but I’m delighted,” said Fairness Campaign director Chris Hartman. “There were too many unanswered questions, from health benefits to how transgendered patients would receive care to end-of-life decisions in same-gendered households.”

Bill Wagner, executive director of an organization that serves many low-income clients called Family Health Centers Inc., said he was glad that the U of L hospital’s mission to serve the poor would be maintained, but without some changes, he said he is afraid that financial concerns might restrict the hospital’s ability to serve poor people, including the 22,000 patients of his clinics who are uninsured.

“It’s really important that we have a system that preserves the safety net,” he said, according to the Courier-Journal.

Peter Hasselbacher, a former professor of medicine at U of L and head of the Kentucky Health Policy Institute, said low-income women were “better off, because they don’t have to wonder where they are going to go for procedures. But my hope is that care for the indigent and underserved is going to get better, because the whole issue of funding has been brought out in the public more,” according to the Courier-Journal.