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Practicing Medicine Without a License: 
When Church Law Shapes Health Care, Patients Suffer

by Sandy Oestreich

Embattled Hospital to Leave Catholic Consortium


The following article is from Free Inquiry magazine, Volume 21, Number 1.


How would you like your health care dictated by a total stranger in a foreign land? If you are a patient at any of the 50% of America's nonprofit hospitals that have entered into mergers or joint operating agreements with a Catholic institution, that's the situation you may face.

If you haven't sought reproductive health care in one of those hospitals lately, you won't notice much change. You may see gold-framed plaques posted near the elevators telling you of the hospital's "mission" to render quality care to All God's Children. Unless you're an employee, you won't know that employees most likely had to sign onto the Roman Catholic church's Ethical and Religious Directives (ERDs). The ERDs prohibit obstetricians from performing, for example, needed tubal ligations-especially immediately after childbirth, when they're safest, most convenient, most practical, and least expensive. Such patients are required to return sometime later to a different hospital, be re-anesthetized for what is now invasive surgery, and plunk down several hundred additional dollars (not to mention babysitting costs for the newborn).

You may not be able to find emergency contraceptive pills known as the "morning-after pill" (or indeed, any contraception) on the hospital's pharmacy shelves for administration after rape. You'll also be unable to locate condoms on the shelves, not even for the purpose of preventing transmission of HIV.

Yet the only procedure most Catholic-secular hospital consortia will admit they have eliminated is so-called elective abortion. Some hospitals define elective abortion as any termination of pregnancy that predictably might produce a fetus that might be able to be kept alive, even briefly. So they require such questionable pregnancies to be maintained until "viability," which is customarily 20 weeks. They may decide that labor may be induced and the infant be subjected to extraordinary life-saving measures. That forces delayed childbirth on a woman knowing full well that her baby will be born anencephalic (without a brain), for example. Some activists question any use of the phrase "elective abortion," saying that an abortion in many circumstances is the only option and hardly "elective" based on a whim. 

It gets worse. Have you adopted "Advance Directives" concerning your own end-of-life care, perhaps thinking they would be followed through by your doctor or your attorney? At a Catholic-secular hospital, they will likely be ignored. The choices you so carefully selected and discussed regarding your own end-of-life care may be willfully disregarded. Chillingly, when the time comes, you probably will never know.

There is nothing you can do about this as a patient of an institution subject to the ERDs. Unless you check yourself out of the hospital-perhaps still ill or weakened-to seek (and pay) for care elsewhere, whether you are Catholic or not you are the captive of the Roman Catholic Church. It's happening all across America (see Tom Flynn's accompanying article). And about 85% of these Catholic-tainted secular institutions serve populations more than three-quarters of which are non-Catholic. It is all part of the Vatican's effort to force all citizens-not just Catholics-to live within the strictures of Catholic dogma.

Two circumstances helped bring us this point. In the 1970s American bishops, guided by the Vatican, sharpened efforts to impose Catholic moral practice throughout American life (see article on p. 26). Though hospitals have been consolidating for years, the impetus for the latest wave of mergers was the 1997 Balanced Budget Act, which sharply cut hospital revenues. Hospitals sought refuge where they could. One solution was draconian cuts in numbers of nursing staff. Another was to merge, especially with Catholic hospitals whose wealth, social power, and nonprofit status were seductive to financially troubled secular hospitals. Often the fact that, after the merger, the former community hospital partner could no longer offer reproductive or end-of-life care contrary to Catholic doctrine was not made public until the merger was a "done deal."
There is a now a movement to create federal laws requiring full disclosure before any hospital merger, but that offers no help for institutions that have already merged.


A Case Study

In the Tampa Bay, Florida, region, what happened was not technically a merger. It was called a "strategic alliance." (One of its purported architects, board member and St. Petersburg Times constitutional law consultant George Rahdert, called it a "pragmatic horsetrade.") What got traded was citizens' rights.

Faced with massive takeovers by Columbia/HCA, which had bought up many surrounding hospitals, labs, nursing facilities, and even medical supply houses, the remaining independent hospitals faced great pressure to form an alliance of their own. They circled the wagons and joined together as the 10-facility BayCare Health System within the Tampa Bay tri-county area. Two of the participating hospitals were Catholic: St. Joseph's, with several facilities in Tampa, and St. Anthony's in St. Petersburg. The others were Bayfront Medical Center (a public hospital partly owned by the City of St. Petersburg), Morton Plant-Mease Health Care, South Florida Baptist Hospital, and North Bay Medical Center. Eventually these institutions were conjoined in the BayCare Health System.

Bayfront Medical Center (Bayfront) rests partially on city-owned land leased for $10 per year and has long been regarded as the region's public hospital. The center's lease with the city specifically prohibits discrimination based on, among other things, religion or creed.

We now know that it would have been far easier to prevent this "devil's pact" than to try to exorcise it later, as we are now doing. Only once before, in Bedford, New Hampshire, has a public hospital successfully extricated itself from a Catholic hospital's entanglement after the fact. Here in St. Petersburg we've formed the Coalition for Religious Freedom in Our Secular Hospitals in hopes of effecting the nation's second "post-nuptial" Catholic-public hospital divorce.

St. Petersburg's experience is instructive. As in many communities, elected officials and other community leaders acted naively. When Bayfront Medical Center's lawyers came before St. Petersburg's mayor and city council in 1997 asking permission of the city, its landlord, to join the BayCare consortium, officials rubber-stamped the request without considering its implications. The city simply hoped that such a collaboration would help keep Columbia/HCA from taking over more hospitals and achieving a near-monopoly in the region.

The agreement was presented as a collaboration that would firm up the public hospital's bottom line by enhancing purchasing power. One resident at that public meeting was bold enough to ask what changes the religious influence might impose. Bayfront's lawyers assured all present that "medical care would not change," and the Letter of Intent they presented implied that its oblique reference to the Catholic ERDs applied only to the Catholic entities in the consortium. When pressed for copies of the actual Joint Operating Agreement (JOA) that was to cement the deal, Bayfront's attorneys said that the Letter of Intent the city had in its hands contained essentially the same information as the JOA itself. Unfortunately, the city council and the mayor made the fatal misjudgment that Bayfront could be trusted without seeing the actual document they signed onto!

Shortly after (and very quietly), Bayfront's board of directors met and agreed to the consortium's real terms: Bayfront, a public hospital, would be bound by the ERDs to prohibit most abortions, contraception, voluntary sterilizations, fertility treatments, and advance directives regarding end-of-life care. At about the same time, Bayfront quietly changed its corporate status in its Articles of Incorporation filed with the State of Florida to declare itself a "religious institution" without notifying the city. This is a far cry from "medical care will not change," and proof that no one, especially city officials, should sign a contract without reading the fine print.

It apparently would not have mattered what agreement the city would have hammered out with Bayfront as the Roman Catholic Church probably has no intention of honoring it anyway. In 1995, Austin, Texas-based Brackenridge Hospital, a Catholic institution, merged with a city-owned hospital. The agreement allowed medical procedures forbidden under the ERDs, such as direct sterilization and contraceptive programs, to be offered within the partnered institutions. In late 1997 the Vatican ordered Austin Bishop John McCarthy to have the agreement "reformulated to bring it into conformity with the requirements of Catholic moral teaching."1 In other words, the bishop was told that no matter what the original agreement was between merged hospitals he must now enforce new restrictions.

At St. Petersburg's Bayfront Hospital, most abortions have been banned. Decisions whether to offer such care are made case-by-case by Sister Pat Shirley, a nun employed by Bayfront-St. Anthony's to head up the entire Ethics Committee of the Consortium. Not surprisingly, Sister Pat basically Just Says No. We know of several individuals who have been denied their constitutional rights to legal, medically reasonable procedures, but fear of Roman Catholic retribution keeps them from speaking out. We hope our activism will help liberate accessibility of legal, medically appropriate reproductive care in our community.

Up Close and Personal

I was catapulted out of blissful ignorance in July 1999, when the Tampa Tribune broke the story that the two-year-old merger would drastically affect reproductive care at Bayfront Hospital. 

I saw this as urgent First and Fourteenth Amendment issues as well as a woman's issue: an abrogation of constitutional protections for reproductive choice as well as for the rights of the elderly regarding end-of-life care. Immediately I contacted all of my friends in grass-roots organizations and the clergy. Some 20 organizations joined to form the Coalition for Religious Freedom in Our Secular Hospitals, most of them then issuing resolutions decrying the loss of patients' rights and featuring the story in organizational newsletters. After seven months of prodding by this coalition and their own moral outrage, in March 2000, the city filed suit in federal court against Bayfront, its own public hospital. The suit complains of "religious entanglement," violation of conditions of the hospital's lease, and violation of Florida's "Sunshine Act." Like many states, Florida has a law that governmental entities must keep open records and must only hold meetings "in the sunshine," that is, openly, in the public eye. Since Bayfront's Board of Directors discussed and signed the BayCare JOA behind closed doors, the city claims that law has been violated. Bayfront has countersued.

The council and mayor of the City of St. Petersburg required extensive convincing by the coalition before they agreed to sue. Though they were angry at having been misled by the Bayfront administration, they remained concerned that the hospital might not survive financially if the BayCare consortium were broken and Bayfront Hospital had to operate once again on its own. Bayfront played on this fear by telling the mayor, council members, and its employees that the hospital would have to close if separated from the consortium.

Paying attention belatedly, the city now wants to assure that the public asset Bayfront represents will not be diminished financially if it leaves the BayCare consortium. Meanwhile, observers charge that St. Anthony's, St. Petersburg's original Catholic hospital, seems to be draining revenues and services from Bayfront so that, if Bayfront does separate, St. Anthony's will be the richer for it and so will the BayCare consortium.

Our coalition is single-mindedly focused on its goal of lifting the Roman Catholic Ethical and Religious Directives from Bayfront and from BayCare's other secular community hospitals. We have the best chance with Bayfront, since we have a legal handle on it-the city's lease.

This coalition has two thrusts. One is to mobilize public protest, proven to be most effective technique for preventing mergers elsewhere. Because this merger has already occurred, our coalition has developed a legal arm as well, led by attorney Marcia Cohen, a member of Pinellas NOW and long-time women's advocate in discrimination and harassment cases. She is working pro bono with a local constitutional lawyer, Mark Brown, on behalf of four local individuals and four advocacy organizations: the American Civil Liberties Union of Florida, Inc.; Americans United for Separation of Church and State; the National Organization for Women; and Planned Parenthood of Central and Southwest Florida, Inc. Suit was filed August 16, 2000, against the City of St. Petersburg, Bayfront Medical Center, Bayfront Health System, Inc., and BayCare Health System, Inc. Though this is the culmination of much hard work and determination by a small band of people we know it is not over.

None of us has ever done anything like this before with such pugnacious determination. To get the public's attention, coalition members wrote 78 letters to the editor (most of them unpublished), and gathered signed petitions stating: "While the undersigned have great concerns for the financial status of Bayfront Medical Center, we urge the lifting of the Catholic Ethical and Religious Directives from the backs of patients and employees of BayCare Health System." We gathered in groups (including Jan Loeb Eisler, president of the St. Petersburg-Largo Area Secular Humanists) to lobby individual city council members and the mayor. We were successful with two of our three demands: that an attorney be hired who would be dedicated to the issue and not distracted by other municipal concerns and that a public hearing occur before the city accepts any settlement. I spoke before City Hall nearly every month urging the officials to uphold the Constitution and reminding them that, if even one Bayfront patient were denied a legal abortion, Bayfront would be in violation of the Constitution, so the city had better sue quickly or risk being seen as part of the problem.

Our coalition continues vocal public protests. We protest at every gala hospital fundraiser. We shout: "We don't care if you do incantations in your hallways of the Catholic hospitals, just get the pope out of the beds in our secular hospitals. You are trampling on the flag. Don't you care how they use your donations? Shame, shame, sha-a-a-me on you." We protested outside City Hall every time the affair was discussed, singing the corny old song "Sioux City Sue" with new lyrics urging the city to "Sue, City, Sue." I appeared on several local television and radio shows and even in the July 2000 issue of Redbook magazine. The National Now Times newspaper and Zero Population Growth's Activist Update have also carried this story.

Frankly, chances are not good that the Bayfront agreement will be overturned. The Catholic hierarchy drives hard bargains and defends its turf. In addition, the only other time a completed merger was dissolved, in New Hampshire, involved a high-profile fiasco. The hospital denied a therapeutic abortion to a miscarrying woman, who had to travel to a public hospital that would perform the procedure 80 miles away in a taxicab, hemorrhaging all the while. Our case is not so dramatic.

Warning flags should be flying in every community. Monitor your media closely for the first warnings of a Catholic-public hospital merger and mobilize early or you, too, may find yourself or a loved one denied access to legal medical care.

There ought to be a law against clergymen practicing medicine without a license. Until there is, we'll just have to look out for ourselves. 

 

Note
1. Letter of Tarcisio Bertone, Secretary of the Congregation for the Doctrine of the Faith (Vatican City), to Bishop John C. McCarthy, December 19, 1997.


Sandy Oestreich is professor emerita, nurse practitioner, a former elected official, and president of Pinellas (Florida) chapter of the National Organization for Women


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