While the Phoenix case may signal increasing scrutiny by local bishops into hospital conduct, healthcare officials also face more pressure on the opposite front. The American Civil Liberties Union sent a letter to the CMS in December renewing its request to have federal officials investigate what it called denials of emergency care by religiously affiliated hospitals that considered abortion procedures immoral.
“Religiously affiliated hospitals are not exempt from federal law that requires them to provide emergency care to their patients,” Vania Leveille, legislative counsel with the ACLU, said in a written statement. “The government must ensure that all hospitals that receive federal funding are in compliance with the law.”
Those kinds of statements, in the context of greater scrutiny by bishops, have some legal observers wondering whether more hospitals executives are going to find themselves forced to make the kinds of choices that officials in Phoenix did.
“It's going to be an interesting time here in the next few years, and a difficult environment for Catholic hospitals, at least those determined to maintain their Catholic identity,” said Leonard Nelson III, a professor at Samford University's Cumberland School of Law in Birmingham, Ala. “I think it's going to get tougher for them.”
In Phoenix, the tension stewed for years through private discussions between Olmsted and hospital officials before it boiled over into the public sphere after a controversial abortion on Nov. 5, 2009.
The hospital terminated the pregnancy of a mother of four who was diagnosed with pulmonary hypertension that hospital officials said was threatening the pregnant woman's life. The hospital ethics committee determined that the mother's life was in jeopardy and approved the abortion.
“Our medical staff did try to save both lives,” St. Joseph's President and CEO Linda Hunt said in an e-mailed statement. “We will always try to save both lives. In this case it was impossible. Rather than let both the mother and the baby die, we saved the only life we could.”
Olmsted, who spent a decade working as a high-ranking official at the Vatican during the tenure of Pope John Paul II and has served on several influential boards with the U.S. bishops conference, said the procedure violated the bishops' ethics rules because a direct abortion is never justified for medical reasons.
The Phoenix bishop announced that a nun who served on the hospital's ethics committee had excommunicated herself, and Olmsted effectively excommunicated the hospital as well after executives refused to accede to his moral authority, stripping away its Catholic identity and prohibiting Mass from being celebrated in its chapel.
“When I met with officials of the hospital to learn more of the details of what had occurred, it became clear that, in the decision to abort, the equal dignity of the mother and the baby were not both upheld,” Olmsted said in a statement.
An avalanche of opinion from the commentariat followed. The New York Times weighed in on its editorial page in favor of the hospital, while sources such as the National Catholic Bioethics Center and Catholic Medical Association supported the bishop's decision (See editorial, p. 20).
Nelson, the Samford University professor, said the CHA's comments in favor of the hospital attracted particular attention given Keehan's public dispute with the bishops over the reform law last spring. “Traditionally it's been up to the bishop to adopt the” ethical and religious directives, he said, “and then interpret them. What the hospital has said is, we reserve the right to interpret them for ourselves. And the CHA has backed them.”
Olmsted also pointedly criticized the hospital and 38-hospital Catholic Healthcare West for its business relationship with Mercy Care Plan, a Medicaid program that provides contraceptives and other services banned under Catholic ethics—the kind of federal financial inducement Catholic officials have long feared would undermine religious ethics.
“You have precisely the situation in Phoenix that the bishops fear is going to become a national problem,” said Paul Danello, a private-practice attorney in Catholic canon law. “That is part of the objection that the bishops have had to Obama health reform,” because they believe “these kind of procedures could be required to be performed in healthcare reform.”
Olmsted said CHW and St. Joseph's have collected more than $100 million a year through “this partnership with the government,” which is legally titled Southwest Catholic Health Network Corp. but does business as Mercy Care Plan.
The bishop took exception to CHW's arguments that Catholic ethics shouldn't apply at nearby Chandler (Ariz.) Regional Medical Center, which is not operated as a Catholic hospital and therefore doesn't adhere to the bishops' ethics, even though it is owned by CHW.
“I objected strongly to CHW's lack of compliance with these directives, and told CHW leaders that this constituted cooperation in evil that must be corrected,” Olmsted said in his statement. “Because if a healthcare entity wishes to call itself Catholic (as in ‘Catholic' Healthcare West), it needs to adhere to the teachings of the church in all of its institutions.”
CHW, based in San Francisco, declined to comment or confirm a public statement by the Archdiocese of San Francisco that it requested a meeting with CHW executives in the wake of the Phoenix situation.