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.
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.
The Becket Fund is a nonprofit, nonpartisan, public interest law firm
dedicated to protecting the free expression of all religious traditions.
It has successfully represented clients from a wide variety of religious
traditions - including Buddhists, Christians, Hindus, Jews, Muslims, Native
Americans, Sikhs, and Zoroastrians - in religious liberty litigation around
the world.
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
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 . . .it was later shown that the ACLU's claim was false.
In fact, the only public health emergency one can be
sure would occur is the one the ACLU's proposal would
create. The ACLU's access argument is based on the
unthinking assumption that most conscientious objectors
must be bluffing: faced with the choice between
performing abortions and being punished, the thinking
goes, they will surely cave in. Don't bet on it.
Many religious hospitals will not compromise their
sincerely held religious beliefs, even if threatened by
the federal government.19
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
http://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
http://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
http://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
http://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
http://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
http://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
http://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
http://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.