Seething Battle Continues Over Catholic Takeover of Hospitals in Denver

Wendy Norris

An ongoing battle over the takeover of Denver hospitals by Catholic institutions threatens total loss of hospital-based reproductive health care. A Federal Trade Commission ruling offers the last chance to separate health care from ideology.

Backroom deals, multiple lawsuits and $600 million dollars
mark the Sisters of Charity attempt to force religious medical directives on
non-sectarian medical centers in Colorado.

A controversial move to transfer operational control of three
secular Denver-area hospitals to a Catholic healthcare system expected to take
place on December 31 appears to be on hold pending federal approval.

The unexpected delay by the Federal Trade Commission to
bless the transaction may provide local critics with a last gasp effort to
continue fighting the deal. Community members and medical professionals contend
the transfer would unfairly subject comprehensive reproductive health and
end-of-life care to church doctrine over patients’ needs. The Catholic church
considers abortion, contraception, elective sterilization and termination of
invasive life support as "intrinsically evil" and refuses to provide
these medical services or respect patients’ advance directives.

The disputed takeover in Denver exemplifies the very serious
implications for the 127 non-denominational hospitals that succumbed to merger
fever with cash-flush Catholic health care systems in the 1990s. According to a
study by Catholics
for Choice
, half of merged secular-Catholic hospitals suspended most
or all of their reproductive health care services. Eighty-two percent denied
emergency contraception to rape victims — and more than a third refused to
provide a referral.

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But for some tax-exempt, nonprofit hospitals co-owned by
secular and church interests, there was little more than a wink and a nod to
church mandates on care. Comprehensive reproductive healthcare services quietly
remained available.

These practices received higher scrutiny in 2001
when the U.S. Conference of Catholic Bishops revised its Ethical and Religious
Directives for medical care to address "misinterpretation and
misapplication of the principle of cooperation with other-than-Catholic
organizations." In other words, the church would no longer turn a blind
eye to reproductive health and end-of-life care at its secular partner
facilities that did not meet strict Catholic orthodoxy.

MergerWatch.org notes several examples
of broken promises by Catholic healthcare systems to preserve reproductive
health services at non-religious hospitals it acquired through mergers. Typical
reasons included newly installed diocesan bishops with more dogmatic views on
medical directives or the Vatican overturning decisions made by previously
autonomous bishops.

More importantly, the local hospital policymaking was a
little noticed precursor to the bare knuckles strategy on recent display with
the church’s relentless lobbying for the 2009 Stupak
and Nelson amendments
to further restrict access to abortion care via
publicly-subsidized health insurance plans. At the same time, the Catholic
Archdiocese of Washington, D.C., threatened
to end social service programs
for tens of thousands of poor residents if
the city council approved a same-sex marriage ordinance.

Now, the Denver hospital takeover is offering a glimpse of
the intense pressure being brought to bear by the church on its healthcare
partners. The Vatican’s renewed insistence on complete doctrinal influence on
patient care is bolstered by very real threats to hold desperately needed
institutional capital funds hostage until its theological demands are met.

And that once delicate balance between serving patient needs
and adhering to strict Catholic medical directives is unraveling in plain
sight.

Another Example of Follow
the Money

Exempla Lutheran in Wheat Ridge, Colo., and Exempla Good
Samaritan Medical Centers in nearby Lafayette have been sponsored by the
Community First Foundation, the former fundraising arm of Lutheran Medical
Center, and the Kansas-based Sisters of Charity of Leavenworth in a complex
joint partnership since 1997. The two organizations formed the non-sectarian
Exempla Healthcare System to manage the hospital operations of the medical centers
founded from the ashes of two former Lutheran facilities and St. Joseph
Hospital, a 130-year-old institution in the city of Denver, which is wholly
owned by the Sisters of Charity.

With the three Denver hospitals in need of major
infrastructure investments to keep pace in a highly competitive health care
market, the Sisters of Charity began flexing their muscle by demanding complete
say in day-to-day operations. The Catholic health system complained to the Kansas
Business Journal
that without administrative control it could not borrow money
needed for capital improvements.

Namely, that would mean the ouster of Exempla and its
non-sectarian medical policies.

Not surprisingly, the ultimatum raised the hackles of
community members, patients and healthcare professionals at the Exempla-run
hospitals. The initial offer sought to buyout Community First’s co-membership
in Exempla for $311 million with the Sisters of Charity committing an
additional $300 million in capital improvements to the hospitals – a deal the
charitable foundation readily agreed to as a way to plump up its sagging
recession-battered assets and its growing distaste for the healthcare business.

The Community and Politicians
Fight to Protect Women’s Healthcare

The Exempla board and a citizen group filed lawsuits in 2008
to block the sale citing, in part, concerns that non-sectarian medical policies
would end under a Roman Catholic healthcare system. Community members formed
Save Lutheran Medical Center and produced a petition signed by more than 9,000
local residents to reject the deal.

But it was all for naught.

Two years of lawsuits resulted in a June 5 binding
arbitration agreement that nullified the cash payment to Community First as a
violation of state law since the community, not the foundation, owns the assets
of the tax-exempt, nonprofit hospitals.

But in a blow to reproductive health advocates, Arbitrator
William Meyer determined that the takeover could still occur as long as nothing
of value exchanged hands between the foundation and the Sisters of Charity. He
also disregarded the religious medical directive argument claiming that the
founding documents of the two Lutheran hospitals didn’t require them to remain
secular.

While the cases played out in court and behind closed doors
in the private arbitration hearing, Colorado state lawmakers worked to minimize
the damage of losing hospital-based reproductive healthcare services.

Issues of religious doctrinal interference in
physician-patient decision making came to a head in 2007 when Gov.
Bill Ritter signed a law
requiring hospitals and pharmacies to provide
sexual assault victims information about emergency contraception. However, a
conscience clause was added to the bill in order to get conservative Democrats
on board after heavy lobbying by the Colorado Conference of Bishops.

Likewise, during the 2009 legislative session, the state
passed a landmark Birth
Control Protection Act
to legally define contraceptive treatments,
procedures and devices to stem future challenges to health insurance benefits
or from "personhood" laws devised to give fertilized eggs civil right
protections.

Though, again, the Catholic church forced a compromise to
exclude mifespristone, or RU-486, and other federally approved pharmaceuticals
that induce abortion.

Yet, despite the efforts of pro-choice lawmakers there are
no safeguards in place to mandate other hospital-based reproductive health
services, like sterilization or abortion, or in end-of-life care procedures
that require the removal of feeding tubes or ventilators at tax-exempt,
nonprofit facilities.

An 11th-Hour Reprieve
Wrapped Up in Red Tape

Since the summer arbitration ruling, Community First and the
Sisters of Charity have forged a new deal that keeps the foundation on as a
co-partner but exempts it from any fiscal responsibility for the mounting $2.1
billion in capital needs at the three hospitals. The duo will then transfer
control of Exempla to the Sisters of Charity, putting it in complete charge of
the hospitals’ administration.

Critics of the latest deal pinned their hopes on a 2008
state law that requires the state attorney general to review nonprofit hospital
transactions that could substantially change hospital services the public has
come to expect. Despite that law, Colorado Attorney General John Suthers, an
anti-choice Republican, said in November there was no need to hold a hearing on
the Sisters of Charity deal because it was now merely a change in bylaws and
not a merger.

Meanwhile, the two partners continue to finalize the phasing
out of Exempla’s independence. A new board of directors, comprised of an equal
number of appointees by Community First and the Sisters of Charity, was
announced December 13.

The last remaining obstacle to the church’s imposition of
religious directives on care is the Federal Trade Commission which must approve
the deal.

A decision was expected by year-end but has not yet
been made public. An FTC spokesperson could not be reached for comment about
the delay.

News Health Systems

Illinois Bill: Catholic Hospitals Must Inform Patients Where They Can Obtain Denied Care

Nicole Knight Shine

The legislation amends the state Health Care Right of Conscience Act to require religiously affiliated facilities to inform patients in writing about health-care providers "who they reasonably believe" offer procedures that the institutions will not perform.

Religiously affiliated hospitals in Illinois must advise patients where they can find treatments that the institutions won’t offer on religious grounds, under new legislation sitting on the governor’s desk.

The patient information measure, SB 1564, comes at a time when almost about 30 percent of hospital beds in the state—and one in six in the nation—are in Catholic institutions that bar certain reproductive health and end-of-life treatments, according to recent figures from the advocacy group MergerWatch.

The legislation amends the state Health Care Right of Conscience Act to require religiously affiliated facilities to inform patients in writing about health-care providers “who they reasonably believe” offer procedures that the institutions will not perform, or to refer or transfer patients to those alternate providers. Hospitals must do this in response to patient requests for such procedures. The legislation cleared the state house on a 61-54 vote and the senate on a 34-19 vote. Democrats control both chambers.

The office of Illinois Gov. Bruce Rauner (R) did not respond to request for comment on whether he would sign the bill.

Catholic facilities often follow U.S. Conference of Catholic Bishops religious directives  that generally bar treatments such as sterilization, in vitro fertilization, and abortion care. The federal Church Amendment and some state laws protect these faith-based objections.

Even so, growing concerns over facilities that deny treatment that patients want—and that doctors advise—has recently prompted lawmakers in Illinois, Michigan, and Washington state to advance patient information measures.

A Michigan lawsuit now on appeal alleges a Catholic facility caused unnecessary trauma by denying a patient treatment. In 2010, then-18-weeks pregnant Tamesha Means arrived at a Catholic hospital, Mercy Health Partners in Muskegon, Michigan, bleeding and miscarrying. On two occasions, the hospital turned away Means, as Rewire reported. It wasn’t until Means started delivering on her third hospital visit that she received treatment.

The Illinois legislation represents a compromise among the Illinois Catholic Health Association, the Illinois State Medical Society, and the Illinois affiliate of the American Civil Liberties Union (ACLU), representatives from the groups told Rewire.

Lorie Chaiten, director of the ACLU of Illinois’ Reproductive Rights Project, said in an online statement that the legislation “protects patients when health care providers exercise religious refusals.”

Research indicates that patients aren’t always aware that religiously affiliated facilities don’t provide a full spectrum of reproductive health services, according to a 2014 paper published in Contraception.

Patrick Cacchione, executive director of the Illinois Catholic Health Association, said the organization, which represents the state’s 43 Catholic hospitals, opposed an early version of the bill requiring religious health-care facilities to give patients a written list of known medical providers that perform the treatments that the religious institutions oppose.

Cacchione said such a direct referral would have made Catholic hospitals “complicit.”

“We will provide all the information you need, but we will not make a direct referral,” he told Rewire in a phone interview Monday. The new version of the legislation does not require hospitals to confirm that providers perform the treatments; the facilities must only have a “reasonable belief” that they do.

He said Illinois hospitals are already doing what the legislation now requires.

Approximately one in five doctors surveyed at religiously affiliated institutions “had experienced conflict with the institution over religiously based patient care policies,” according to the 2010 paper, “Religious Hospitals and Primary Care Physicians: Conflicts Over Policies for Patient Care,” published in the Journal of General Internal Medicine.

In an emailed statement, Dr. Thomas M. Anderson, a Chicago radiologist and president of the Illinois State Medical Society, told Rewire, “The Society strongly believes physicians should be able to exercise their right of conscience and changes made to SB 1564 protect that right.”

Culture & Conversation Law and Policy

The Modern Struggle Over Anti-Trans Bathroom Laws Has Its Roots in Decades of Title VII Fights

Jessica Mason Pieklo

Because of Sex: One Law, Ten Cases, and Fifty Years That Changed American Women’s Lives at Work, written by Gillian Thomas, senior staff attorney with the American Civil Liberties Union Women’s Rights Project, goes beyond cases that helped shape workplace anti-discrimination policies. Rather, it focuses on ten key women whose own lives changed the law.

In 1966, Ida Phillips, a single mother working as a waitress, sat down at her kitchen table and wrote a letter to then-President Lyndon B. Johnson. She told him her story: Despite her qualifications, Phillips had been told by a Martin Marietta employee not to apply for an assembly-line position at one of the construction-material company’s manufacturing plant. The job would have paid more than double what she was making as a waitress. It included a pension plan and insurance, benefits unavailable in most female-dominated industries at the time (and which since have only marginally improved.) The reason Phillips was turned away? She was a woman with a preschool child.

That letter, Phillips’ subsequent lawsuit, and her Supreme Court win would help spark a civil rights revolution in the workplace—one with consequences that reverberate today.

So opens Because of Sex: One Law, Ten Cases, and Fifty Years That Changed American Women’s Lives at Workwritten by Gillian Thomas, senior staff attorney with the American Civil Liberties Union (ACLU) Women’s Rights Project. Despite its full title, though, Because of Sex goes beyond cases that helped shape workplace anti-discrimination policies, focusing on ten key women whose own lives changed the law.

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex, and national origin. And it was Phillips’ case, and the nine others profiled in the book, that would ultimately shape that law into one that, decades later, is an important tool in advancing gender and sex equality. As Thomas explained to Rewire in an interview, Title VII it is not just a foundational piece of civil rights legislation important for its historical effect on workplace equality. In the face of anti-transgender bathroom bills and statewide “religious liberties” legislation sweeping the country, it is a crucial tool for pushing equality forward.

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Thomas’ book is organized along three key themes in employment discrimination law: pregnancy-related workplace policies, gender stereotypes in the workplace, and sexual harassment. Those themes act as an inroad toward thinking more broadly about how, in Thomas’ words, we achieve “substantive equality” in the workplace. They illustrate how early fights over promotions and workplace policies that kept women out of certain jobs due to concerns of harming their potential fertility foreshadowed the legal showdowns over contraception coverage in employee health-care plans in cases like Burwell v. Hobby Lobby and Zubik v. Burwell.

“The subject matter areas that I saw [as a researcher and employment discrimination litigator] were, number one, women’s capacity for pregnancy, and then their subsequent roles as mothers, which, historically, has played a huge role in their second-class status legally,” Thomas told Rewire. “Women of color have always been seen as workers, irrespective of whether they had children, so that’s not an entirely universal stereotype. But I think it’s pretty safe to say that generally pregnancy and motherhood have proven to be enormous conflicts in terms of what equality looks like when you have these distinct differences” in how race and gender are perceived.

Take, for instance, the case of Peggy Young and the question whether an employer can refuse to make on-the-job accommodations for pregnant employees when it does so for nonpregnant employees. Young, another one of the women featured in Thomas’ book, was a United Parcel Service (UPS) “air driver” who became pregnant. When Young told her employer she was pregnant, UPS told her they couldn’t accommodate the light-lifting recommendation made by Young’s medical providers. Instead, UPS told Young, she would have to take unpaid medical leave for the remainder of her pregnancy.

In March 2015, the U.S. Supreme Court ruled against UPS, vacating the Fourth Circuit Court of Appeals ruling that had supported UPS’ policy. The decision produced a new test for assessing pregnancy discrimination claims and sent Young’s case back to the lower courts for another look. Not long after the Roberts Court’s decision, UPS and Young settled the lawsuit, bringing an end to Young’s case.

The decision was a qualified win for advocates. The Roberts Court had accepted Young’s argument that UPS had no legitimate business reason for failing to accommodate her particular request, but the decision went short of ruling businesses must accommodate any pregnancy request.

But Because of Sex doesn’t stop at unpacking overt discrimination like the kind detailed in Young’s 2015 case or Phillips’ one in 1966. The book also takes a look at what the law has described as more “benevolent” kinds of discrimination. These include employment policies designed to “protect” women from endangering possible future pregnancies, such as prohibiting women employees from working jobs where they may be exposed to hazardous chemicals.

“It really all boils down to two issues that we are talking about in all these things,” Thomas explained, when discussing workplace policies that, employers have argued, were put in place to protect their female employees from potentially endangering a pregnancy. “One is [employers] ignoring hazards that apply to men and making women into baby-making machines. And number two is [employers] treating health effects or health hazards on the job as reasons for diminishing women’s opportunities, instead of arming women with information and assuming that they will make the right choice for themselves.”

This disconnect is most apparent in the case of United Automobile Workers vJohnson Controls, Inc., another case Thomas highlights in her book. In 1982, the car battery manufacturer Johnson Controls sent a memorandum to all its employees that said “[w]omen who are pregnant or who are capable of bearing children will not be placed into jobs involving lead exposure or which would expose them to lead through the exercise of job bidding, bumping, transfer or promotion rights.”

The policy amounted to a demotion for many female employees and a closed door for others.

Title VII actually permits employers, in a limited context, to have employment policies that discriminate on their face, such as policies that permit churches to only hire members of the same faith. Johnson Controls argued its policy of keeping women out of certain positions due to employer concerns of health risks to future pregnancies fit within Title VII’s narrow window for permitting explicit discrimination.

The Supreme Court would eventually rule in 1991 that Johnson Controls’ policy violated Title VII because it forced female employees to have to choose “between having a child and having a job,” thereby rejecting the argument made by Johnson Control’s that a woman’s fertility—or infertility—can in most situations be considered a bona fide occupational qualification.

As Thomas noted in her book, “It was no coincidence that fetal protection politics were most prevalent in well-paid, unionized industries from which women historically had been excluded. Indeed they had been excluded precisely because they had been deemed physically unsuited for the dirty, sometimes strenuous work.”

But “in female-dominated fields, though, fetal protection policies made no business sense; they effectively would gut the workforce. That reality apparently trumped any hypothetical harm to employees’ future pregnancies,” Thomas wrote.

In other words, these policies didn’t exist in female-dominated fields.

Johnson Controls may have helped grant women the agency to determine how and when they earned a paycheck with regard to policies targeting their potential fertility, but it hardly ended the debate around when and how employers attempt to diminish women’s opportunities related to their roles as potential mothers. This has played out in the hundreds of lawsuits over the contraception benefit, for example.

In other words, if Johnson Controls had settled the question of whether a woman’s fertility was an appropriate grounds for discrimination, we would not have Hobby Lobby.

Because of Sex draws another connection between the historical fight over Title VII and the contemporary one: How do employers adjust workplace policies around shifting gender norms, and when is it discriminatory if they don’t?

The law asks, “What are women supposed to want to do?” said Thomas in her interview with Rewire. “What work are they able to do? What work do they want to do? [Given] assumptions and stereotypes that are about their abilities, their preferences, their interests and how [they are] conforming to [those] in terms of stereotypes about what femininity is—what [are] women … supposed to look and act like?”

Gender nonconforming behavior, and the manner in which employees experience discrimination as a result of that behavior, is a key component over the debate around transgender rights. But it would take a “shrill” woman and the birth of the notion of “workplace harassment” to get us and the law there first.

By every measure, Ann Hopkins should have been made a partner in the global accounting firm Price Waterhouse. She was smart. Ambitious. Worked hard and constantly outperformed her peers. But it was those very attributes that her male partners deemed “too aggressive” or as evidence that she needed “charm school,” and ultimately used to deny her a partnership that by every objective measure she had earned.

The Supreme Court would ultimately disagree. In 1989, it ruled Hopkins should have been made a partner and that the comments relating to her demeanor amounted to improper gender stereotyping, a violation of Title VII’s sex discrimination provisions.

If Hopkins was initially shut out of workplace advancement due to her defiance of feminine stereotypes, so too are women subjected to on-the-job harassment, as Thomas draws out in Because of Sex. “Sexual harassment didn’t even have a name in 1974, but was such a prevalent force driving women out of the work force, driving them into different jobs [and] subjugating them just generally in terms of the identity as sexual objects on the job,” Thomas further explained in her interview.

1974 was the year Mechelle Vinson first hired a lawyer to represent her in a case against her boss, who was chronically sexually abusing her on the job. But at the time, courts largely wrote off those kinds of complaints as a kind of chasing-around-the-office, and not sexual harassment, or in Vinson’s case, on-the-job rape. As described by Thomas in her book, “throughout the 1970s, many courts responded to complaints about abusive bosses with a collective shrug that conveyed, ‘You can’t blame a guy for trying.'”

“Sexual harassment was such a prevalent force driving women out of the workforce, driving them into different jobs, and subjugating them just generally in terms of the identity as sexual objects on the job,” Thomas told Rewire.

That “you can’t blame a guy for trying” attitude hasn’t completely gone away as far as the federal courts are concerned. After all, in 2013 the Roberts Court in Vance v. Ball State made it even harder for employees to bring workplace harassment suits, and employees still face losing jobs for “being too cute” or having their sexuality be a perceived threat to their employer’s ability to remain professional in the workplace.

Which is why, in the fight over transgender bathroom access in 2016, Title VII should be a powerful force in defeating these latest attempts to stymie social progress. The idea that “you can’t blame a guy for trying” has morphed into “how the hell can we police gender roles if we don’t know where you pee.” That’s thanks almost entirely to the manner in which the law has wrestled with gender stereotypes under Title VII, Thomas explained.

In 2012, the Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing workplace anti-discrimination laws, issued the landmark decision Macy v. Holder, which held that employment discrimination based on transgender status was a form of unlawful sex discrimination under Title VII. Then in 2015, it issued a ruling stating that denying employees access to restrooms consistent with their gender identity is also a violation of Title VII. Meanwhile several federal courts of appeals have ruled that Title VII protects against gender identity discrimination.

But the Roberts Court has yet to weigh in.

“I think sexual orientation in a way is the sort of a final frontier” in Title VII litigation, said Thomas. “The court seems really fixated on this idea of analogizing very precisely from Hopkins. In other words, if you look or act in a way that doesn’t conform to gender stereotypes then, OK, [the courts] can understand that’s sex discrimination,” said Thomas. “But if your identity is not conforming to stereotypes in that you, you know, are romantically attracted to someone of your sex, that is harder for [the courts] to get, even though it’s obviously the most obvious manifestation of stereotype.”

This is, in many ways, a fight that started in the workplace—one that eventually got the backing of the Obama administration before becoming a flashpoint of conservative election-cycle politics. Thomas’ book doesn’t close on a prediction of what the next big Title VII fight will be per se, but it is impossible to finish it and not see the narrative threads of the historical fight for workplace equality woven throughout the the contemporary one. Sex. Gender. How the law understands and navigates the two. All this is what makes Thomas’ Because of Sex the closest thing to an assigned reading I can make.