Analysis Law and Policy

Did Wisconsin Anti-Choice Lawmakers Accidentally Force Catholic Hospitals to Grant Admitting Privileges to Abortion Clinics?

Jessica Mason Pieklo

The legal battle over Wisconsin's admitting privileges law may be setting up a new fight involving religious hospitals.

Wisconsin is one of the states in the country where abortion access is most zealously under attack. But in anti-choice lawmakers’ zeal to try and regulate legal abortion out of existence in the state, did they accidentally force Catholic hospitals to grant admitting privileges to abortion providers?

The Wisconsin legislature introduced its admitting privileges law on June 4, 2013, and despite the fact that the law was opposed by all the state’s leading medical associations—including the Wisconsin Medical Society, the Wisconsin Association of Local Health Departments and Boards, the Wisconsin Academy of Family Physicians, the Wisconsin Hospital Association, and the Wisconsin Public Health Association—and the legislative record was devoid of any documentation of a medical need or purpose for such a regulation, the law passed. As quickly as the law passed, it was challenged and blocked by a federal court as likely unconstitutional.

But as the immediate, legal challenge to the constitutionality of the admitting privileges requirement plays out, another legal battle over the law has bubbled up. While area providers applied for admitting privileges to try and comply with the law, local Catholic hospitals affected by the admitting privileges requirement originally said they would not grant privileges to abortion providers. Those statements were then contradicted by Dr. Matthew Lee, a doctor on the credentials committee at the Wheaton Franciscan St. Joseph campus in Milwaukee. He told the court during arguments over whether the law should be blocked that he believed religiously affiliated hospitals in the state would be open to granting privileges to doctors who perform abortions. Lee’s statement, in turn, was almost immediately challenged by the chief medical officer for Wheaton Franciscan, who said her organization would not grant privileges to abortion providers, citing the hospital’s Catholic affiliation. According to the Milwaukee Journal Sentinel, when asked about the Wheaton Franciscan policy and its apparent inconsistencies with Lee’s affidavit, the hospital’s assistant general counsel, Matt Moran, said in a statement, “The medical staff and hospital board have discretion in making decisions on granting privileges and can consider the mission, values, and operational needs of the organization. Requiring certain professional, ethical, and character qualifications is recognized by the courts as valid and related to the operation of the hospital.”

Although religiously affiliated hospitals in the region have figured out publicly whether they would or would not grant admitting privileges to abortion providers, attorneys for the State of Wisconsin told the court any plan by the hospitals to deny privileges because of a Catholic anti-abortion stance would be in violation of federal law, which “provides that hospitals accepting federal funds may not discriminate against a physician because that physician has participated in or refused to participate in abortions.” That’s thanks to the Church Amendments, federal statutes enacted after Roe v. Wade that are designed to protect federally funded hospitals and doctors from being required to participate in abortion or sterilization procedures. But the Church Amendments also protect doctors who perform abortions, including in decisions about privileges. The law, in part, prohibits “discrimination in the extension of staff or other privileges to any physician or other health-care personnel, because he performed or assisted in the performance of a lawful sterilization procedure or abortion.” If doctors are ultimately denied admitting privileges and can prove they were not granted those privileges specifically because they perform abortions, the hospital systems could lose federal dollars in the form of research and public health grants.

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Surely an institution like Wheaton Franciscan understands what’s at stake in violating the Church Amendments. It’s difficult to imagine anti-abortion lawmakers purposefully pushing abortion restrictions that would actually force Catholic hospitals to grant privileges to abortion providers. So what exactly is going on here?

All this confusion raises the obvious question of whether Wisconsin is being set up as a test case for just how much protection the Church Amendments offer providers or if this is really a question of lawmakers not knowing and not caring about the legislation they put forward. According to the Journal Sentinel, state Sen. Mary Lazich (R-New Berlin), who authored the Wisconsin bill, said she was not only unaware of the Church Amendments, she initially asked if they “were part of [the Affordable Care Act]” which suggests that Lazich had failed in her legislative due diligence. U.S. District Judge William Conley believed that was at least part of the story: “Here, there are no legislative findings. … The record contains no testimony from a physician or other medical expert about whether, how, or why the admitting privileges requirement would further women’s health. On the contrary, the record contains only physicians and medical organizations speaking against the bill.”

It’s one thing to find evidence of lawmakers not understanding the legislation they sponsor, but anti-choice legal strategy has rarely been that haphazard, even by today’s Tea Party standards. Importantly, the reach of the Church Amendments has largely been untested, especially in the context that pits the rights of an abortion provider against the discretion of a Catholic hospital’s decision-making process related to admitting privileges, and now may be just the time to mount a test case. The more than 60 lawsuits challenging the contraception mandate in the Affordable Care Act are designed to do one thing: radically redefine the nature of religious liberty rights to protect corporate interests. In other states that have also recently passed privileges requirements for abortion providers, religiously affiliated hospitals have denied the doctors’ applications by citing their failure to meet other standards, such as admitting a certain number of patients per year. In Wisconsin’s case, there’s already a public record that the hospitals are opposed to granting privileges to physicians who perform abortions, which suggests, at least in part, an unlawful motivation on the part of hospitals to deny privileges.

It’s an important question with real lives at stake. According to Law Students for Reproductive Justice, nearly 70 percent of religiously affiliated hospitals in the United States are Roman Catholic, which makes the Catholic health-care system the largest nonprofit provider of health care in the country. Under the Religious and Ethical Directives for Catholic Health Care Services, Catholic hospitals cannot, as directed by the church, provide contraception, sterilization, most infertility treatments, let alone abortions. Research conducted in 2010 revealed that one-fifth of physicians who practice in religious hospitals have faced a “clinical ethical conflict,” because hospital policies conflict with the physician’s medical judgment. Should the anti-discrimination provision of the Church Amendments is struck down in court, it won’t matter if Roe is overturned or not.

News Health Systems

What Happens When a Catholic-Run Clinic Comes to Your Local Walgreens?

Amy Littlefield

“It causes us great concern when we think about vulnerable populations ... [who] may need to use these clinics for things like getting their contraception prescribed and who would never think that when they went into a Walgreens they would be restricted by Catholic doctrine,” Lorie Chaiten, director of the women’s and reproductive rights project of the ACLU of Illinois, told Rewire.

One of the largest Catholic health systems is set to begin running health clinics inside 27 Walgreens stores in Missouri and Illinois next week. The deal between Walgreens and SSM Health has raised concerns from public interest groups worried that care may be compromised by religious doctrine.

Catholic health systems generally follow directives issued by the U.S. Conference of Catholic Bishops that restrict access to an array of services, including abortion care, contraception, tubal ligations, vasectomies, and fertility treatments.

“We are concerned that the clinics will likewise be required to follow the [directives], thereby severely curtailing access to important reproductive health services, information, and referrals,” MergerWatch, the National Health Law Program, and the American Civil Liberties Unions of Illinois and Missouri wrote in a letter to Walgreens on Wednesday. They also sent a letter to SSM Health.

In a statement emailed to Rewire, Walgreens said its relationship with SSM Health “will not have any impact on any of our current clinic or pharmacy policies and procedures.”

SSM Health emailed a statement saying it “will continue to offer the same services that are currently available at Walgreens Healthcare Clinics today.” If a patient needs services “that are beyond the scope of what is appropriate for a retail clinic setting, they will be referred to a primary care physician or other provider of their choice,” the statement read.

A spokesperson for SSM Health demurred when Rewire asked if that would include referrals for abortion care.

“I’ve got to check this part out, my apologies, this is one that hadn’t occurred to me,” said Jason Merrill, the spokesperson.

Merrill later reiterated SSM Health’s statement that it would continue to offer the same services.

Catholic health systems have in recent years expanded control over U.S. hospitals, with one in six acute-care hospital beds now in a Catholic-owned or -affiliated facility. Patients in such hospitals have been turned away while miscarrying, denied tubal ligations, and refused abortion care despite conditions like brain cancer.

Catholic health systems have also expanded into the broader landscape of outpatient services, raising new questions about how religion could influence other forms of care.

“The whole health system is transforming itself with more and more health care being delivered outside the hospital,” Lois Uttley, director of MergerWatch, told Rewire. “So we are looking carefully to make sure that the religious restrictions that have been such a problem for reproductive health care at Catholic hospitals are not now transferred to these drug store clinics or to urgent care centers or free-standing emergency rooms.”

Walgreens last year announced a similar arrangement with the Catholic health system Providence Health & Services to bring up to 25 retail clinics to Oregon and Washington. After expressing concerns about the deal, the ACLU of Washington said it received assurances from both Walgreens and Providence that services at those clinics would not be affected by religious doctrine.

Meanwhile, the major urgent care provider CityMD recently announced a partnership with CHI Franciscan Health–which is affiliated with Catholic Health Initiatives–to open urgent care centers in Washington state.

“We’re seeing [Catholic health systems] going into the urgent care business and into the primary care business and in accountable care organizations, where they are having an influence on the services that are available to the public and to consumers,” Susan Berke Fogel, director of reproductive health at the National Health Law Program, told Rewire.

GoHealth Urgent Care, which describes itself as “one of the fastest growing urgent care companies in the U.S.,” announced an agreement this year with Dignity Health to bring urgent care centers to California’s Bay Area. Dignity Health used to be called Catholic Healthcare West, but changed its name in 2012.

“This is another pattern that we’ve seen of Catholic health plans and health providers changing their names to things that don’t sound so Catholic,” Lois Uttley said.

 

In the letters sent Wednesday, the National Health Law Program and other groups requested meetings with Walgreens and SSM Health to discuss concerns about the potential influence of religion on the clinics.

“It causes us great concern when we think about vulnerable populations, we think about low-income people… people who… may need to use these clinics for things like getting their contraception prescribed and who would never think that when they went into a Walgreens they would be restricted by Catholic doctrine,” Lorie Chaiten, director of the Reproductive Rights Project of the ACLU of Illinois, told Rewire.

The new clinics in Walgreens will reportedly be called “SSM Health Express Clinics at Walgreens.” According to SSM Health’s website, its initials “[pay] tribute” to the Sisters of St. Mary.

“We are fairly forthcoming with the fact that we are a mission-based health care organization,” Merrill told Rewire. “That’s something we embrace. I don’t think it’s anything we would hide.”

 

Tell us your story. Have religious restrictions affected your ability to access health care? Email stories@rewire.news

News Abortion

Abortion Providers Could Recoup Millions From Wisconsin After Fighting Unconstitutional Anti-Choice Law

Michelle D. Anderson

The providers seeking money include Planned Parenthood of Wisconsin, Inc., Planned Parenthood Federation of America, and Milwaukee Women's Medical Services, which conducts business as Affiliated Medical Services.

Abortion providers serving Wisconsin residents could recoup nearly $1.8 million in legal fees they amassed while fighting an anti-choice law that was first blocked in 2013. However, spokespeople for the State of Wisconsin have raised the possibility of an undisclosed settlement.

In a U.S. District Court filing dated July 28, the providers requested an award of “attorneys’ fees, costs and expenses” that could be recouped under the Civil Rights Attorneys’ Fee Awards Act of 1976. On Wednesday in response, Wisconsin Attorney General Brad Schimel asked the court to extend the due date for the state to respond from August 18 to September 1. The request was granted, according to court documents.

“The parties are currently discussing settlement of the plaintiffs’ motion. An extension of the briefing schedule would allow the parties the opportunity to explore the possibility of a settlement of this issue,” Schimel said in the court filing.

The providers seeking money include Planned Parenthood of Wisconsin, Inc., Planned Parenthood Federation of America, and Milwaukee Women’s Medical Services, which conducts business as Affiliated Medical Services. The sum requested includes $1.7 million in attorneys’ fees, $44,253 in billable costs and $22,545 in out-of-pocket expenses, according to the court filing.

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The providers amassed the fees fighting Wisconsin Act 37 of 2013, a Republican-initiated law that required doctors to have hospital admitting privileges within 30 miles of the location where an abortion was to be performed.

U.S. District Judge William Conley of the Western District of Wisconsin blocked the law’s enforcement soon after Republican Gov. Scott Walker signed it in 2013.

The state attorney general twice appealed to the Seventh Circuit U.S. Court of Appeals, which affirmed the lower court’s decision both times; the U.S. Supreme Court also declined to take the case a day after overturning a similar provision in Whole Woman’s Health v. Hellerstedt.

In a Court of Appeals opinion issued in November 2015, the court said there was no evidence that “transfer agreements provide inferior protection to the health of women undergoing abortion compared to admitting privileges.” The opinion concluded by saying the unconstitutional statute was burdensome and curtailed citizens’ constitutional right to an abortion.

“The statute may not be irrational, yet may still impose an undue burden—a burden excessive in relation to the aims of the statute and the benefits likely to be conferred by it— and if so it is unconstitutional,” the court said.

If not blocked, the law would have forced pregnant people in various parts of the state to travel at least an extra 200 miles round trip to access legal abortion, according to a previous Rewire report.

Johnny Koremenos, a spokesperson for Schimel, had indicated in statements to the Journal Sentinel and the Wisconsin State Journal earlier this month that the state would fight the charges for legal fees. He said Schimel would challenge the providers’ request “to ensure that the state is not paying more than it should be for those fees,” according to local news reports.

Koremenos did not respond to Rewire’s request for comment.

Walker also supported fighting the fees, his spokesperson told the Journal Sentinel.

Ismael Ozanne, the district attorney for Dane County, was also named as a defendant in the providers’ lawsuit, along with several state medical examining board members.

Planned Parenthood of Wisconsin spokeswoman Iris Riis told Rewire the money Planned Parenthood is seeking in this case is only a recoup of the legal fees already spent fighting the unconstitutional admitting privileges law.

“There would not be any leftover money to allocate to services or any fund. It would just cover what was already spent. Governor Walker’s administration appealed multiple definitive rulings, wasting countless taxpayer dollars in the process. That action also drove up our legal costs,” Riis said.

Riis said the plaintiffs do not know when Conley will issue the ruling that will determine whether Schimel will have to compensate them for legal fees.

Andrew Wiseman, a deputy clerk in the U.S. District Court, Western District of Wisconsin, told Rewire the court could not offer a prediction about the date of Conley’s ruling.

Affiliated Medical Services, which operates a clinic in Milwaukee, is being represented by the American Civil Liberties Union of Wisconsin, while private attorneys are representing Planned Parenthood.

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