Becket Fund Letter to the US Department of Health and Human Services

Responding to the American Civil Liberties Union complaint against Catholic hospitals

Reproduced with permission

19 August, 2010

By Facsimile and First Class Mail

Marilyn Tavenner
Acting Administrator
Principal Deputy Administrator and Chief Operating Officer
Centers for Medicare and Medicaid Services
200 Independence Avenue S.W.
Room 314G
Washington, D.C. 20201
Fax: 202-690-6262

Re: Conscience protection at religiously-affiliated hospitals

Dear Ms. Tavenner:

We recently became aware of the ACLU's efforts to ensnare your office in upending this nation's longstanding commitment to protecting conscience rights in the medical profession.  We are responding specifically to the ACLU's letter of July 1, 2010,1 which pressures your office to distort existing federal law in order to compel religiously-affiliated hospitals into performing abortions in direct violation of their conscience.  In its letter, the ACLU argues that "[r]eligiously affiliated hospitals across the country inappropriately and unlawfully deny pregnant women emergency health care."2

The ACLU has no business radically re-defining the meaning of "emergency health care," just as it has no business demanding that religious doctors and nurses violate their faith by performing a procedure they believe is tantamount to murder.  Forcing religious hospitals to perform abortions not only undermines this nation's integral commitment to conscience rights, it violates the numerous federal laws that recognized and protect those rights.  Ironically, it is also contrary to the text and purpose of the Emergency Medical Treatment and Active Labor Act ("EMTALA"),3 the very law the ACLU cites as the basis for its proposal.

The Becket Fund is deeply concerned about the basic human right of every individual to follow his or her conscience, and the corollary right of religious institutions to live in accordance with conscience.  That right has a long and storied place in American history - from the conscientious refusal of 18th Century Quakers to take oaths or bear arms, to the conscientious refusal of 20th Century Jehovah's Witnesses to pledge allegiance to the American Flag.  With respect to abortion, conscience has been protected ever since Roe v. Wade.4  Because the ACLU's proposal would violate our nation's longstanding tradition of protecting the right of conscience of health care institutions, The Becket Fund strongly opposes it.

Furthermore, the effects on our healthcare system would be devastating.  Around the world, form the first Islamic bimaristan in the eighth century to Mother Teresa's Missionaries of Charity, religious groups have made an incalculable contribution to health care.  In the United States, the Catholic Church has been on the front lines since 1727 when 12 religious sisters arrived in New Orleans and became nurses and servants of the poor and orphans.  As the ACLU admits, Catholic hospitals alone operate 15% fo the hospital beds in the country, and are often the only hospital in a particular communtiy.5  To now force religious hospitals to choose between performing abortions against their conscience or else close their doors would not only belittle this great tradition: it would take a health care system in crisis and pour gasoline on the flames.

We will therefore sue HHS and its officers in their official capacities and, when appropriate, their personal capacities to protect this right.  We will also defend any religiously-affiliated hospital threatened by enforcement of this proposed policy.

Existing law clearly protects the conscience rights of medical institutions

An an initial matter, the ACLU's proposal, if adopted, would violate longstanding federal laws that protect the rights of conscience of health care institutions.6

The "Church Amendment," first passed in the wake of Roe v. Wade in 1973, states that public officials may not require health care institutions, as a condition of receiving federal funds, "to perform or assist in the performance of any sterilization procedure or abortion" if such actions "would be contrary to [their] religious beliefs or moral convictions."7

The 1996 amendments to the Public Health Service Act prohibit the federal government from discriminating against health care entities that refuse to perform abortions.8

The Weldon Amendment, incorporated in every HHS appropriations act since 2005, strips federal agencies and state and local governments of HHS funds if those agencies or governments discriminate against any entities (including hospitals) that refuse to provide, pay for, or refer for an abortion.9 As the ACLU itself recognizes, the Weldon Amendment "would allow virtually any health care entity to refuse to provide, cover or even refer for abortions where they are otherwise legally mandated."10

The ACLU's proposal misinterprets EMTALA

Although the ACLU grounds its arguments on EMTALA, its proposal disregards the law's text and purpose, not to mention 25 years of caselaw.11  The text of EMTALA, far from requiring an abortion, requires a hospital to consider whether its decisions "may pose a threat to the health or safety of the woman or the unborn child."12

Likewise, the ACLU's proposal upends Congress's purposes in passing EMTALA.  Commonly known as the "Patient Anti-Dumping Act,"13 Congress passed EMTALA to address the problem of hospitals dumping indigent and uninsured individuals from hospital emergency rooms.14  More generally, EMTALA address "disparate treatment": whether a hospital discriminates among its patients based upon their ability to pay.15  Here, no one has suggested that religious hospitals selectively invoke their conscientious objection, refusing to perform abortions for the poor, but willing to perform them for those who can pay.  The ACLU's speculative proposal is therefore utterly unrelated to the problems EMTALA was passed to address.16

In the light of EMTALA's text and purpose, it should be no surprise that, in the nearly 25 years since it was passed in 1986, no court has ever read it to require a hospital or doctor to perform an abortion.  The ACLU nowhere explains why, in light of this history, the HHS should find this requirement in the statute now.17

The ACLU's proposal would exacerbate, not solve, problems of access to health care

It would be a grave error to force religious hospitals to perform abortions against their conscience because of a few speculative hypotheticals, along with anonymous, unsourced anecdotes.  For years now the ACLU has been anxious to undermine conscience protection laws, and in its zeal has overstated the evidence that abortion is "necessary" for women's health.  In 2002, the ACLU told Congress that it had found one case in recent years showing the need for a medical necessity exception to conscience protection laws.  Then, too, the ACLU did nto provide enough information to allow opponents to fact-check its claims.  However, it was later shown that the ACLU's claim was false.18

If the HHS adopts the ACLU's interpretation of EMTALA, it would presumably soon start denying Medicare funding to religious hospitals that refuse to perform abortions.20  Few hospitals are able to survive without Medicare funding.21  As one commentator has argued, "Without public funds, [Catholic hospitals] couldn't stay open; if forced to do abortions, they would rather close their door."22  In her view, "Whatever your view on the legality and morality of abortion, there is another important question to be considered here:  Could we even begin to reform our already overburdened health care system without these Catholic institutions?  I don't see how."23  Pressuring those hospitals to violate their consciences, then, will not increase access to health care for anyone; in fact, it will significantly reduce access to health care for everyone by lowering the number of providers. This is a huge step backwards.

Conclusion

The CLU has asked HHS to take urgent action to coerce religious hospitals into performing abortions against their consciences.  This breathtaking overreach ignores our nation's longstanding commitment to protecting the freedom of conscience, both in general and particularly with respect to health are institutions.  It relies on a reading of EMTALA that does violence to the statute's text and purpose.  Finally, the ACLU's proposal would have the HHS in essence shut down religious hospitals based on a set of anecdotes that have not been identified, much less verified, and on a scenario that has not presented a public health problem in the past.  For these reasons, the Becket Fund urges the HHS to reject this unseemly proposal and continue our nation's longstanding tradition of honoring the right of religious institutions to serve the medical needs of their communities according to the dictates of their conscience.

To repeat: We will represent, pro bono, any religious hospital or its personnel that HHS threatens because of their conscientious objection to abortion.  And we will, if necessary, sue to block any such proposed policy.

Sincerely,

Kevin J. Hasson,
President
The Becket Fund for Religious Liberty

Notes

1.  Letter from ACLU to CMS re: Denial of Reproductive Health Care at Religious Hospitals (July 1, 2010), available at https://www.aclu.org/files/assets/Letter_to_CMS_Final_PDF.pdf

2.  Id. at 1.

3.  42 U.S.C. § 1395dd.

4.  See Letter from The Becket Fund to HHS re: Recission Proposal Comments (April 8, 2009) available at https://www.becketfund.org/files/ea888.pdf

5.  See Letter from ACLU, supra note 1, at 2.

6.  See Letter from The Becket Fund, supra note 4.  The ACLU's aggressive interpretation of the COP regulations likewise cannot be reconciled with these federal laws.

7.  Health Programs Extension Act § 401, Publ L. No. 94-45, 87 Stat. 91, 95 (June 18, 1973), codified at 42 U.S.C. 300a-7(b)-(c)(1).

8.  42 U.S.C. § 238n(a)(1).

9.  Consolidated Appropriations Act, 2008, Public Law No. 110-161, Div. G. § 508(d), 121 Stat. 1844, 2209 (Dec. 26, 2007).

10.  ACLU, Safeguard Women's Access to Critical Reproductive Health Care: Repeal the Women's Health Care Refusal Provision (Sept. 14, 2005), available at https://www.aclu.org/safeguard-womens-access-critical-reproductive-health-care-repeal-womens-health-care-refusal-proviso

11.  The ACLU's interpretation of EMTALA is also contrary to federal regulations implementing the law, such as 42 C.F.R. § 489.24(d)(2)(i) (EMTALA does not apply after a hospital admits someone as an inpatient in good faith in order to stabilize the emergency medical condition).  See Brief for The United States as Amicus Curiae, Providence Hospital, et al, v. Moses, - S.Ct. - 2010 WL 2555241 (No. 09-438) at *9, available at  2010 WL 2101920 ("The [Sixth Circuit] erred in holding that EMTALA's coverage unambiguously continues after an individual has been admitted in good faith to the hospitals as an inpatient.  Congress did not speak directly to this issue, and HHS is entitled to deference as the expert agency.").

12.  42 U.S.S. § 1395dd(e)(1)(B)(ii) (emphasis added).  The statute furthermore defines an "emergency medical condition" as one that "plac[es] the health of  . . . the [pregnant] woman or her undborn child[] in serious jeopardy."  42 U.S.C. § 1395dd(e)(1)(A)(i) (emphasis added)

13.  See Bryan v. Adventist Health System/West, 289 F3d. 1162 (9th Cir. 2002)

14.  Brief for The United States as Amicus Curiae, supra note 11, at *12 ("EMTALA's legislative history makes clear that Congress was primarily focused on the problems of hospitals dumping indigent and uninsured individuals from hospital emergency rooms.")  See also Bryant, 289 F.3d at 1165 (Congressed passed EMTALA because it "was concerned that hospitals were 'dumping' patients who were unable to pay, either by refusing to provide emergency medical treatment or transfering patients before their conditions were stabilized." (citation omitted)).

15.  See, e.g., Phillips v. Hillcrest Med. Ctr., 244 F3d 790, 797 (10th Cir. 2001) ("[A] hospital's obligation under EMTALA is measured by whether it treats every patient perceived to have the same medical condition in the same manner.").

16.  The ACLU's proposal invites HHS to use EMTALA as a general federal malpractice statute.  However, courts have consistently rejected such an approach.  See, eg., Bryant 289 F.3d at 1166 ("EMTALA, however, was not enacted to establish a federal medical malpractice cause of action nor to establish a national standard fo care." (citation omitted)).

17.  As noted above, since 1973, Congress has enacted numerous conscience clause provisions on abortion with no exceptions, as have the great majority of states.  See Letter from the Becket Fund, supra note 4, at 3.  Yet no court has ever determined that these laws placed a woman's life or health in jeopardy.  Nothing in the ACLU's letter explains why a public health emergency exists where it has never been found before.

18.  See U.S. Conf. of Catholic Bishops: Secretariat for Pro-Life Activities, The Hyde/Wldon Conscience Protection Amendment: No Threat to Women's Lives, April 19, 2005, available at https://www.nccbuscc.org/prolife/issues/abortion/hwlif.pdf  ("[T]he hospital was eventually identified, and the ACLU's account was found to be false.  The woman was in the hospital for a condition unrelated to her pregnancy.  When she requested an abortion, she was turned down because it was elective and the hospital did not perform abortions in that circumstance.  The woman obtained an abortion elsewhere, then returned to the hospital for treatment of the condition for which she was admitted.")

19.  Catholic bishops in the United States have recently reiterated the longstanding Catholic position that "abortion willed as an end or as a means[] always constitutes a grave moral disorder, since it is the deliberate killing of an innocent human being."  Pope John Paul II, The Gospel of Life, no. 62.  See Press Release, U.S. Conf. of Catholic Bishops: Committee on Doctrine,  The Distinction between Direct Abortion and Legitimate Medical Procedures (June 23, 2010), available at https://www.usccb.org/doctrine/direct-abortion-statement2010-06-23.pdf; Press Release, The Roman Catholic Diocese of Phoenix, Statement re: Situation at St. Joseph's Hospital (May 23, 2010), available at https://www.catholicsun.org/2010/may/15/DIOCESE-STATEMENT-051410.pdf.

20.  HHS has the authority to deny a hospital Medicare funds if it determines that it is not in compliance with relevant federal law and regulations.  See e.g., 42 U.S.C. § 139x(e), 42 C.F.R. Parts 482 and 488.

21.  Steven Chickering, a Certification Officer within CMS, said, "We don't want to withdraw Medicare funding because it puts many hospitals in difficult financial situations."  Lora Hines and Gene Ghiotto, Southwest Healthcare may lose Medicare funding, The Press Enterprise, April 15, 2010, available at https://www.pe.com/localnews/indland/stories/PE_News_Local_W-southwest16.46804f6.html

22.  Melinda Hennegerger, Lose-Lose on Abortion: "Obama's threat to Catholic hospitals and their very serious counterthreat," Slate, Nov. 24, 2008, available at https://www.slate.com/id/2205326/ ("Even the prospect of selling the institutions to other providers wouldn't be an option, the bishops have said, because that would constitute 'material cooperation with an intrinsic evil.'").

23.  Id.