Wednesday, December 05, 2007

Hospitals for sale: no Catholics need apply?

A bioethics dispute is brewing in Colorado.

The Sisters of Charity of Leavenworth Health system is in talks to take full ownership of two non-Catholic hospitals in the Denver area, but disputes over the instatement of a Catholic code of ethics could halt the deal. CNA has a summary.

The acquisition is being challenged by both hospital staff at the two hospitals and various activists. If the Colorado Attorney General rules the acquisition would constitute a "material change of purpose" of the present hospitals, it would be prohibited.

Following an open request for input at, I wrote the following letter:

At a time when many Catholic institutions and individuals follow
Christian ethics only when it is convenient, I applaud the Sisters of
Charity for adhering to a consistent ethic as they consider expanding
to take responsibility for Exempla hospitals.

It is understandable that this code of ethics will confuse or even
anger those who don't share all of the same committments.

Regrettably, news coverage rarely lessens such confusion by explaining
the logic behind controversial ethical stances.

I am sure many do not understand certain Catholic moral concerns, such
as why vasectomies or tubal ligations should be considered unethical.
Though there isn't space for a full discussion, I'll venture my
layman's understanding of that reasoning:

Suppose there became popular an elective surgery that severed the
optical nerve for those who no longer wanted to see. We can see the
principle by which medical professionals would refuse that
"treatment." Eyesight is healthy, and not a medical problem.
Deliberately to blind someone, even at their request, is a kind of
mutilation directly contrary to the art of medicine.

In a similar way, deliberately to mar healthy reproductive organs is
not consistent with medical practice. Sterility, not fertility, is
the ailment to be treated. Medicine aims to heal rather than thwart
the natural functions of the human body, which Catholics and many
others believe to be a work of God.

Centuries of considered ethical thought has helped lead to these
controverted conclusions, and I hope the skeptical will examine that
reasoning in more detail, as explained by intelligent scholars at
places like the National Catholic Bioethics Center.

Even so, some might object that a medical institution coming under
Catholic auspices has no business imposing its revised medical ethics
on its staff or patients, when those ethical principles aren't
widely-shared and seem to intrude upon individual prerogatives. But
if, to suggest an extreme example, the euthanizing of disabled
newborns(with parental consent) ever became an accepted, HMO-covered
medical procedure, I hope the principled minority would support
Catholic organizations that defy that norm and refuse accommodation.
Majority rule can't be the deciding factor in medical ethics.

The Sisters of Charity are responsible not only to God(a most
important patron), but also to their thousands of benefactors across
the years who have expected the Sisters to carry on their mission in a
manner consistent with Catholic principles and sound medical ethics.
Indeed, the principles the Sisters of Charity hold are in part
responsible for their present prominence.

If the merger goes through, millions of dollars from their endowment
will supply medical facilities that otherwise would not be available.
As a Kaiser Permanente member, that's fine by me.

Catholic ethics requires not only these presently controversial moral
stands; it also mandates care for the sick and dying. To obey that
mandate, we can all agree.


One local bioethicist Dr. Lawrence Rust really does think majority rule should be the deciding factor in medical ethics. Catholic ethics can't have the final say in Catholic-run hospitals, but it deserves a "prominent voice." How nice!

The Rocky Mountain News recently ran an article with the amusing title Catholic-run Hospitals Not New. According to New Advent, Christian hospitals have been around in some form since the fourth century.

Less amusing is the article's implication that Catholic ethics is professed, but that profession never restricts actual medical practice. Exempla CEO Jeff Selberg describes how the code of ethics works in practice:
"The language is there that says we respect life and we will not accept anything that would encroach upon or impact the dignity of one's life," Selberg said. "At the same time, judgment must be used to determine what is best for the individual and what is in alignment with one's conscience."

"On first blush, you see these rules as very literal, very black and white," Selberg said. "But when you read the entirety, you find that there is latitude in terms of judgment.

"There's discretion as long as there's good faith that the directives are being carried out to the degree possible and the patient's welfare is always put first."

That kind of flexibility is shown, for instance, with end-of-life issues, Selberg said.

If a patient is in an irreversible coma or vegetative state, doctors counsel relatives. If relatives want feeding tubes or ventilators to be removed, the request goes to the ethics committee, Selberg said.

"I can't think of a case that we've had where we have denied or refused the request," he said. "It is something that is reviewed or evaluated, but it is not unreasonably withheld."

As much as I would like to think correct decisions are always made by patients and doctors, that last paragraph makes the ethics committee look like a rubber-stamp council.

The latest article, Coalition: Hospital deal violates law, further discusses the controversy.
Ed Kahn, special counsel at the Center on Law & Policy in Denver, argues that charitable donations were made to provide non-sectarian medical care at both hospitals. If the sale goes through, both hospitals would become Catholic facilities and medical care would be restricted, Kahn said. Doctors would have to follow religious directives against performing tubal ligations, vasectomies and abortions, and not remove feeding tubes from patients in a vegetative state.

Opponents, too, can cite the will of charitable benefactors.

Yet the hospitals in question are named Lutheran Medical Center and Good Samaritan Hospital. These hospitals' very names could be considered sectarian. It seems Kahn would have to argue Lutheran donors wouldn't want their facilities used by Catholics. The typical example of a sectarian hospital, I think, would be one which only permits sect members as staff or patients. Neither Lutheran nor the Sisters of Charity hospitals qualify.

Kahn's invocation of "non-sectarian" is troubling, considering its history. The only mention of non-sectarianism in public law that comes to mind is in the Colorado State Constitution, which prohibits school funding for sectarian education in its "Blaine Amendment."

This calls to mind Justice Clarence Thomas' opinion of such amendments in Mitchell v. Helms:
Opposition to aid to “sectarian” schools acquired prominence in the 1870’s with Congress’s consideration (and near passage) of the Blaine Amendment, which would have amended the Constitution to bar any aid to sectarian institutions. Consideration of the amendment arose at a time of pervasive hostility to the Catholic Church and to Catholics in general, and it was an open secret that “sectarian” was code for “Catholic.” See generally Green, The Blaine Amendment Reconsidered. Notwithstanding its history, of course, “sectarian” could, on its face, describe the school of any religious sect, but the Court eliminated this possibility of confusion when, in Hunt v. McNair, it coined the term “pervasively sectarian”–a term which, at that time, could be applied almost exclusively to Catholic parochial schools and which even today’s dissent exemplifies chiefly by reference to such schools.

The RMN article further informs us that Kahn wrote the letter on behalf of the ACLU of Colorado, the state chapters of Compassion & Choices and the National Council of Jewish Women, the National Women's Law Center and other groups. They apparently meet at the First Universalist Church of Denver.

By the standards of yellow journalism, one could write the sensationalistic headline "Jews, Universalists oppose Catholic hospital expansion."

There is another legal challenge in the article:
Opponents also contend that the seller, the Community First Foundation, would spend money from the transaction on non-health care-related operations. That would violate the general Nonprofit Corporations law and the Uniform Management of Institutional Funds Act, Kahn said.

I wish the article told us what the money would be spent on.

This dispute isn't an easy one. I would be quite sad if many doctors felt they had to quit because of ethical differences. But I would be even more affected if a victorious rationale prohibiting this merger means Catholic hospitals can never expand into existing facilities.

1 comment:

Patrick said...

There was a similar controversy in Austin several years. I'm fuzzy on this but will try to remember.

The city owns a hospital called Brackenridge which was horribly mismanaged. The Catholic Seton hospital system was hired to manage the hospital while the city retained ownership.

At some point somebody figured out that Seton was not doing sterilizations etc in this public hospital. An uproar ensued. The bishop said, basically, "Fine, get someone else to run your hospital then. We're not doing it."

The city was in a bind because no one but Seton was willing to manage Brackenridge at an affordable rate. Seton was losing millions in providing indigent care. After tense negotiations they worked out a deal where one floor of the hospital would be managed by another entity that was willing to do the services Seton refused to provide.