Home -> Law Blog Directory -> Federal Judiciary Blogs -> Bench Memos - National Review Online

Federal Judiciary

: Bench Memos - National Review Online

Catholic Health Care in the Age of Obama -- By: Interview

Democrat-sponsored health-care legislation currently before Congress could require violations of Catholic teaching in such areas as abortion, contraception, euthanasia, assisted suicide -- even infanticide. Leonard J. Nelson III, a professor at the Cumberland School of Law at Samford University, has been studying these issues for years and discusses them in his new book, Diagnosis Critical: The Urgent Threats Confronting Catholic Health Care (OSV 2009). Recently he fielded questions from National Review Online?s Kathryn Jean Lopez.

 

 

KATHRYN JEAN LOPEZ: Why should anyone who is not Catholic care about the future of Catholic health care in America?

 

JACK NELSON: Catholic hospitals are the primary alternative to government-owned and for-profit hospitals in the United States. There are approximately 600 Catholic hospitals in the United States. At their best, Catholic hospitals offer a distinctive product by combining traditional health-care services with a commitment to serving the poor and promoting the sanctity of life. If Catholic hospitals disappear, there will be even a greater likelihood that health care in the United States will become a unitary governmental system. This would lead to a vast increase in the power of the federal government and a concomitant decline in the role of intermediate groups that enhance social cohesion and humanize health care. It would also deprive consumers of an attractive option in the health-care marketplace: quality health-care services provided within the normative framework established by the Ethical and Religious Directives for Catholic Health-Care Services (ERDs).

 LOPEZ: Are there people in Catholic hospitals who seriously consider the issues posed by the culture of life vs. a culture of death? Don?t they worry the stakes are just too high?

 

NELSON: There are certainly persons working in Catholic hospitals who are concerned about the threats to Catholic health care posed by a pervasive culture of death, but there are also others who would rather elide that conflict. The stakes are very high for Catholic health care and for our society. There is already a prevalent view among post-Christian elites in the West that the sanctity-of-life ethic is archaic and should be replaced by a utilitarian framework that would be used to allocate health-care services at both the beginning and the end of life. As we move into an era of increased demands on health-care resources due to the aging of the baby-boomer generation, it is likely that there will be proposals to ration health care through physician-assisted suicide and euthanasia. At the other end of the spectrum, abortion and even infanticide of handicapped babies will be advanced as humanistic alternatives to reduce the costs of health care.

 

 

LOPEZ: Are all bets off when a Catholic hospital is sold?

 

NELSON: Some Catholic facilities have been sold subject to an agreement by the non-Catholic purchaser to follow some of the norms contained in the ERDs after the sale. Typically the purchaser agrees to refrain from providing elective abortions in the formerly Catholic facility. But usually it is left up to the discretion of the purchaser to determine which abortions are elective and which are therapeutic. Thus it may be difficult to enforce even this restriction, much less a ban on other procedures that would be impermissible under the ERDs, such as direct sterilizations.

 

 

LOPEZ: What do you mean when you cite the quote, ?In the last 50 years, secularism has come to dominate much of medical ethics??

 

NELSON: Even though the term ?bioethics? was not coined until 1971, the discipline of secular bioethics has already largely supplanted religiously based approaches to ethical issues in medicine. There has been an attempt by some secular bioethicists to construct a cross-cultural, universal morality to facilitate consensus on bioethical issues, but this endeavor has not generally been deemed a success. The field of secular bioethics has been dominated by an academic discourse evincing skepticism and ethical relativism. Rejection of moral absolutes has been coupled with an emphasis on patient autonomy or, particularly in the case of debates about rationing, various forms of utilitarianism. Sometimes, as in the case of Peter Singer, there has been a very explicit rejection of Christian values, i.e., the rejection of a sanctity-of-life ethic in favor of a quality-of-life ethic.

LOPEZ: What is the debate about HHS conscience regulations, and where does it stand?

 

NELSON: The provider-conscience regulations were promulgated in December 2008 by the Bush administration to bolster existing statutory conscience-clause provisions. Their adoption was motivated in part by a November 2007 opinion issued by the American College of Obstetricians and Gynecologists (ACOG) requiring doctors who refuse to perform abortions to refer patients to abortion providers. This was followed by regulations issued by the American Board of Obstetricians and Gynecologists that appeared to link board recertification to compliance with the ACOG referral requirement. The provider-conscience regulations were designed to ensure compliance with statutory bans on discrimination against health-care providers with a conscientious objection to specific medical procedures, e.g., abortions and sterilizations. On March 10, 2009, the Obama administration published a notice in the Federal Register announcing its intention to rescind the provider-conscience regulations in their entirety and seeking comments ?to aid our consideration of the many complex questions surrounding the issue and the need for regulation in this area.? This notice mentioned concerns about denials of access to procedures, particularly in rural areas.

 

 

LOPEZ: Do Catholic concerns about sexual-assault guidelines and mandates mean we care more about the unborn than about women?

 

NELSON: As seen in the ERDs, Catholic hospitals are required to protect both the victims of sexual assault and the unborn. Directive 36 of the 2001 ERDs permits the administration of emergency contraception by Catholic institutions to rape victims where there is ?no evidence that conception has occurred already.? Permissible medications include those ?that would prevent ovulation, sperm capicitation, or fertilization.? But it is not permissible to administer medications or treatments that ?have as their purpose or direct effect the removal or destruction, or interference with implantation of, a fertilized ovum.?

 

There has been controversy over whether Plan B, the emergency contraceptive available in the United States, prevents implantation of a fertilized ovum in the uterus. There has also been some controversy over whether Catholic hospitals are required under Directive 36 to administer an ovulation test to sexual-assault victims before giving an anovulant medication. If such a test indicates that ovulation is under way or has already occurred, then arguably it is not morally permissible for a Catholic hospital to administer a medication with a potential abortifacient effect. In response to the adoption of a law in Connecticut that required Catholic hospitals to provide emergency contraception to rape victims, the Connecticut bishops issued a statement indicating that the Church had not authoritatively resolved the question of the morality of the administration of an emergency contraceptive to the victim of a sexual assault without prior administration of an ovulation test. Accordingly, they concluded that it was morally licit for Catholic institutions to comply with the Connecticut law. In response, the National Catholic Bioethics Center issued a statement opining that there was ?virtual unanimity that an ovulation test should be administered before giving anovulant medication.? In addition, in September 2008, the Vatican issued an instruction Dignitas Personae noting the possible abortifacient effect of emergency contraceptives.

 

 

LOPEZ: Should there be an emergency-contraception exception -- for those who aren?t Catholic, at least?

 

NELSON: Under the principle of self-defense, the Church has provided for an exception to the usual prohibition on contraception in order to allow victims of sexual assault to use a contraceptive to prevent fertilization. There seems to be, however, a developing consensus that administration of an ovulation test is required prior to the administration of an emergency contraceptive in order to prevent the possible destruction of a fertilized ovum. Moreover, in Dignitas Personae it was noted ?that anyone who seeks to prevent the implantation of an embryo which may possibly have been conceived and who therefore either requests or prescribes such a pharmaceutical, generally intends abortion.? The prohibition on the provision of direct abortions is not based on Catholic doctrine, but rather on a precept of the natural law binding on all persons. Accordingly, it would not make sense for the Church to allow application of different standards to Catholics and non-Catholics on this issue.

LOPEZ: What are the social-justice concerns in the current health-care debate?

 

NELSON: In a July 17, 2009, letter to Congress on behalf of the United States Conference of Catholic Bishops, Bishop William Murphy stated: ?The Bishops? Conference believes health-care reform should be truly universal and it should be genuinely affordable.? Bishop Murphy then proceeded to list some specific reforms supported by the bishops, including expansion of Medicaid and CHIP and limitations on premiums and out-of-pocket expenses for low-income families.

 

 

LOPEZ: Why does it make economic sense for Catholics to oppose universal government-run health care?

 

NELSON: It is appropriate for Catholics to oppose universal government-run health care under the principle of subsidiarity. The principle of subsidiarity has been frequently mentioned in papal encyclicals as a basic principle of Catholic social teaching. It requires that matters such as health-care reform be handled in a decentralized fashion by local authorities or intermediate groups where feasible. Recently, in Caritas in Veritate, Pope Benedict XVI noted:

A particular manifestation of charity and a guiding criterion for fraternal cooperation between believers and non-believers is undoubtedly the principle of subsidiarity, an expression of inalienable human freedom. Subsidiarity is first and foremost a form of assistance to the human person via the autonomy of intermediate bodies. Such assistance is offered when individuals or groups are unable to accomplish something on their own, and it is always designed to achieve their emancipation, because it fosters freedom and participation through assumption of responsibility. Subsidiarity respects personal dignity by recognizing in the person a subject who is always capable of giving something to others. By considering reciprocity as the heart of what it is to be a human being, subsidiarity is the most effective antidote against any form of all-encompassing welfare state. [footnotes omitted]

LOPEZ: What is wrong with the heath-care system in America today, and how would you make it different?

 

NELSON: The health-care system is definitely broken. Cost inflation for health-care premiums continues at a rate that is well in excess of the [Consumer Price Index]. And there are a large number of people without health insurance. The basic problems are the lack of competition among health-care plans and providers due to the role of third-party payers, the link between employment and insurance, and the current tax treatment.

 

Health insurance essentially consists of two coverage components: (1) pre-payment of annualized routine health expenses, and (2) catastrophic coverage for protection against major medical expenses. The current tax exclusion should be changed so that consumers would receive a tax credit to assist them in purchasing their own health-care coverage. This tax credit could be used to fund a health-savings account for routine expenses and to purchase high-deductible catastrophic coverage. This would provide incentives for consumers to shop around for the best deals. These tax credits would be refundable and advanceable so that low-income persons could participate in the system. Catastrophic coverage could be purchased from any insurer, including a faith-based group that would base its coverage on Catholic principles. I believe this approach is consistent with Catholic social teaching and the principle of subsidiarity. It is essentially the health-care reform proposal endorsed by the Catholic Medical Association.

 

 

LOPEZ: Was it a strategic misfire for pro-lifers to focus on FOCA when regulations short of it can be more stealthily invidious?

 

NELSON: This remains to be seen. At this time, FOCA has not been introduced in Congress, and the Obama administration has indicated it is not a priority. The efforts of the bishops last spring in mustering opposition to FOCA may have had a beneficial impact in heading off attempts to pass FOCA or similar legislation. It is, however, particularly important that the bishops continue their vigilance, because the current health-care reform proposals have the potential to achieve everything FOCA would have achieved and more. Following up on Bishop Murphy?s July 17 letter, Cardinal Rigali?s letters of July 29 and August 11, 2009, clearly articulated the objection of the USCCB to health-care reform measures that aren?t abortion-neutral and do not provide conscience protection.

 

LOPEZ: What is the truth about abortion, death panels, and how pending bills would affect Catholic hospitals?

 

NELSON: Although abortion was not mentioned in the initial drafts of either the House tri-committee bill, H.R. 3200, or the Senate Health, Education, Labor, and Pension Committee (HELP) bill, it seems likely that, in light of the pro-choice positions of President Obama and Secretary Sebelius, abortion would be included in the mandated standard benefit package for the public and private plans available through the health-insurance exchange. Under H.R. 3200, after a five-year period, all employer-provided health plans would also be required to provide the standard benefit package.

 

The House Energy Committee adopted an amendment to H.R. 3200 proposed by Rep. Lois Capps (D., Calif.). Under the Capps Amendment, the public plan and at least one private plan in each region would be required to cover abortion. The remaining private health-insurance plans would not be required to provide abortion coverage, and there would be at least one private plan available in each region without abortion coverage. There is an accounting gimmick included whereby affordability credits (premium subsidies) for low-income persons could not be used to pay for abortion coverage.

 

Inclusion of abortion-coverage mandates in the health-care reform legislation would change the environment for Catholic health-care providers. Most health plans would expect providers in their networks to provide access to abortions. This would pressure Catholic providers to provide either abortions or abortion referrals, as well as sterilizations, in order to be included in health-care networks.

 

The ?death panel? claim apparently refers to section 1233 in H.R. 3200. This section requires Medicare to reimburse physicians for providing advance-care planning consultations to patients that includes discussion of advance directives, appointment of a health-care proxy, and end-of-life care. This consultation is not mandatory. While the ?death panel? claim may be overblown, it is reasonable to be concerned about the prospect of age-based rationing. As pointed out in an article by Betsy McCaughey in the Wall Street Journal, Ezekiel Emanuel, the brother of Rahm Emanuel and health-policy adviser to President Obama, recently published an article in the Lancet calling for age-based rationing. Here is the ?Reaper Curve? from that article:

 

?Age-based priority for receiving scarce medical interventions under the complete lives system.?  From Persad, Wertheimer & Emanuel, Principles for Allocation of Scarce Medical Interventions, 373 Lancet 423, Jan. 31, 2009

 

 

LOPEZ: Would Catholic hospitals really shut down if the government mandated certain procedures?

 

NELSON: That would be up to the bishop in the diocese where the hospital is located. At the very least, no bishop would allow abortions to be performed in a Catholic hospital. It is also probable that bishops would not permit Catholic hospitals to provide abortion referrals. If hospitals were required to do this, they could be shut down, continue operation as non-Catholic facilities, or be sold to a non-Catholic system.

LOPEZ: How can Catholic health care learn from Catholic higher education?

 

NELSON: The secularization of Catholic higher education provides an example of what happens to Catholic institutions that are willing to deemphasize their Catholic identity in exchange for access to public financing and broader acceptance among elites. Fortunately, there is nothing equivalent to the Land O? Lakes Declaration in Catholic health care. One major difference between higher education and health care is the presence of the ERDs. They provide a relatively clear normative framework for Catholic health-care organizations that can be enforced by the local bishop.

 

 

LOPEZ: Could Catholic health care actually do it right, unlike much of Catholic higher education?

 

NELSON: It is possible. Thus far, Catholic health-care organizations have for the most part continued to adhere to the ERDs. Although the numbers of religious working in Catholic health-care organizations has drastically declined, there have been concerted efforts to provide formation to lay employees to continue the mission of the founding order. It is too soon to tell whether those efforts will be successful.

LOPEZ: Should Catholics be doing something to support Catholic health care?

 

NELSON: Unfortunately, some left-leaning Catholic groups have been enthusiastic supporters of current health-care reform proposals, despite the fact that they will likely result in abortion-coverage mandates for private plans and taxpayer subsidies for abortion in the public plan. It is vitally important that Catholics pay close attention to health-care reform. If the legislation is not amended so as to be abortion-neutral and provide conscience protection for Catholic providers, then lay Catholics should let their legislators know of their opposition to reform. The pro-life office of the USCCB has done a good job of tracking and analyzing legislative proposals. Check their website frequently for updates.

 

-- Jack Nelson is a professor at the Cumberland School of Law, Samford University, and a scholar at the Lister Hill Center, University of Alabama Birmingham School of Public Health.

---

Full post as published by Bench Memos - National Review Online on September 22, 2009 (boomark / email).