Catholic World News News Feature

The Limits of Cooperation October 01, 2001

By Matt McDonald

Can a patient who wants to be sterilized have the operation done at an American Catholic hospital?

The answer to that question depends on how one defines the word "Catholic."

In Austin, Texas, for instance, a Catholic corporation operates a hospital, formerly run by the city, where sterilizations take place. But the hospital is governed by a complicated lease agreement designed to create what administrators call a "wall of separation" between the Catholic institution and the delivery of a medical procedure condemned by the Church. The building is owned by the city and run by the Catholic corporation, but the city arranges and pays for the sterilizations. And although the Catholic corporation administers all other medical care in the building, both the city and the corporation maintain the hospital is not Catholic.

"This kind of odd arrangement is not just particular to Austin," says Glenda Parks, executive director of Planned Parenthood/Texas Central Region. "There are odd arrangements all over the place."

Comparable feats of logical and legal gymnastics have been popping up frequently at the intersection of economics and Catholic moral teaching. All across the United States, market pressures are causing many Catholic hospitals to consider associating with non-Catholic hospitals, which are often adamant about retaining the option to provide contraceptive services for their patients. (Contraception and sterilization are the key issues; Catholic hospitals will not ally themselves with facilities that perform abortions--although in the Austin case the city also provides abortion referrals in the building.) The clash of cultures creates a tightrope walk for Catholic administrators as they try to deal with their new partners' demands for certain reproductive services while keeping in mind the Church's condemnation of contraception and abortion.

An old saying claims there are two sides to every story, but this one has at least three. Defenders of the aforementioned odd arrangements say that administrators and local bishops must be flexible in order to craft partnerships with hospitals that provide sterilization, so that Catholic hospitals may continue to serve the poor. Some Catholic critics maintain that any sort of association with contraception amounts to a deal with the devil, contributing to the acceptance of an evil and undermining Church teaching. And from yet another angle, supporters of contraception and abortion contend the Church is riding roughshod over the rights of women by unfairly limiting access to what they consider basic reproductive services.

The skeptics who look askance at these odd arrangements include some officials at the Vatican, who have sought to alter the terms of several hospital mergers. More broadly, the Vatican has also called for the US bishops to offer greater clarity in their guidelines for hospital mergers.

At their meeting in November (which took place after this story was completed), the National Conference of Catholic Bishops had planned to consider changes to its 1994 Ethical and Religious Directives for Catholic Health Care Services. The provisional text, drafted in September by a small working group, would have sharply limited Catholic hospitals' ability to associate with institutions that perform sterilization, because it narrowed the range of circumstances under which a Catholic institution could cooperate with acts the Church deems immoral. Concerned over the proposed changes, several bishops and Catholic health care leaders requested more time to discuss them, so the US bishops will not vote on the guidelines before their June 2001 meeting in Atlanta. Some observers are hoping the bishops will delay the matter even further.

"The Vatican and the bishops know this is probably the most crucial thing they've considered in the last 50 years," argues Msgr. William Broussard, executive director of the Texas Conference of Catholic Health Facilities, who has advised the local bishop and the Catholic health care network in Austin. "This is a question of the survival of the mission of Catholic congregations."

STERILIZATION AND THE CHURCH

For the last several decades, doctors have been able through surgery virtually to ensure that people can have sexual intercourse without conceiving a baby. Women can have their Fallopian tubes tied (in a procedure known as tubal ligation), preventing their ova from ever meeting sperm. Men can have a vasectomy, which prevents sperm from ever leaving the man. After either of these operations, the chance that the patient will be involved in a pregnancy is very close to zero.

The Roman Catholic Church condemns such elective sterilizations as a form of artificial contraception which impermissibly thwarts the purposes of sex acts: to unify man and woman while being open to the potential for creating new life. (Sterilization falls under a double condemnation because it is a form of mutilation: the deliberate disruption of a healthy bodily function.)

While Pope Paul VI reaffirmed the Church teaching against contraception in 1968 with Humanae Vitae, Pope John Paul II has made it something of a crusade. The Pope's first book, Love and Responsibility, published in 1960 when he was auxiliary bishop of Krakow, tried to move the teaching of Catholic sexual morality away from a listing of negatives and toward an endorsement of mutual self-giving within the marriage covenant. After he became Pontiff in 1978, he expounded at length on his "theology of the body," arguing that human sexual love reflects the love between the persons of the Holy Trinity. With such novel images, the Pope has sought to describe the Church's teachings on sexuality not as a series of legalistic rules, but as a guide to happiness.

True marital happiness, John Paul teaches, is incompatible with the purposeful prevention of conception through artificial means. He argues that using barriers, chemicals, or surgical procedures to thwart conception dehumanizes sex, and causes men and women to treat each other like objects of pleasure instead of persons in a sacred partnership. So contraception not only shuts off procreation but also destroys the unity man and woman were meant to achieve. Thus not only is artificial contraception morally wrong, it is also personally destructive. As these teachings touch on a universal moral law, the Church's stance against contraception applies not just to Roman Catholics but to everyone.

Still, those who accept these teachings form a small minority within the Roman Catholic Church. Humanae Vitae has been widely disregarded by laity and clergy alike. When the encyclical first appeared in 1968 many moral theologians panned it; today dissent from its teaching is more the rule than the exception. One recent poll plausibly claimed that as many as 95 percent of Catholics reject the condemnation of contraception; another poll earlier in the 1990s claimed more than two-thirds of all priests reject it, too. With trickling exceptions, Pope John Paul's attempts to rehabilitate the doctrine have made little noticeable impact to date.

Still, the prohibition against contraception endures. Sterilization is even worse than other forms of contraception, the Vatican claimed in its 1975 document Quaecumque sterilizatio, "since it induces a state of sterility in the person which is almost always irreversible." So the Vatican has said Catholic hospitals may not provide elective sterilizations for their patients. But what exactly is a Catholic hospital?

WHY HOSPITALS SUDDENLY FIND EACH OTHER ATTRACTIVE

For more than 150 years, the classic model of a Catholic hospital in the United States was a health-care facility owned and operated by a religious order, usually nuns. (Even to this day, many middle-aged religious sisters can recall that they faced two choices when they first began their religious life: teaching or nursing.) Stand-alone Catholic hospitals, usually named for a saint or their sponsoring order, often had among their neighbors other stand-alone hospitals run by local governments, nonprofit organizations, or for-profit corporations.

The years after World War II were a time of growth for hospitals. Federal subsidies encouraged health-care services to expand. Starting in the 1960s, federal health-insurance programs--Medicare for senior citizens and Medicaid for poor people--generously reimbursed hospitals for the medical costs of many of their patients. Similarly, private health insurance plans, which most people obtained through their employers--or through a family member's employer--covered most medical expenses at cost. "You had a system that told hospitals to 'grow, be bigger, and you'll always do well,'" says Tom Miller, a health-care expert at the Cato Institute, a libertarian think-tank in Washington, DC.

But as medical science advanced, so did the costs of treating patients. Complex surgery and so-called miracle drugs came with a price, which steadily grew. By the 1980s, the US Congress started applying the brakes to Medicare, setting limits on what treatments the federal government would subsidize and at what rate. For younger people, health maintenance organizations replaced traditional fee-for-service health insurance programs. These new health plans sought to limit costs by setting strict reimbursement guidelines and to eliminate unnecessary treatment by forcing their customers to see a gatekeeping "primary care physician" before being treated by specialists.

Hospitals were now squeezed by new economic pressures. Supply was high; years of federal subsidies had driven up the number of available hospital beds. But demand was falling; cost-cutting policies were making hospital stays shorter. Costs increased, but reimbursement rates from government and private insurers shrank. Hospitals that treated uninsured patients were now absorbing more expensive costs, with the same slim likelihood of payment. Many stand-alone hospitals, which for years had been highly profitable, now had serious money problems. "In a number of markets you simply had more hospitals chasing a shrinking dollar," says Miller.

Businesses caught in a shrinking market often try to consolidate by trimming the staff of employees, but hospitals have a special problem: it is hard to "downsize" a building. To survive, many stand-alone hospitals looked for partners. Hospitals that for decades could afford to ignore their neighbors in the industry now saw mergers as a way to cut costs by eliminating redundant services and employees.

As a result of these trends, many hospitals have put independence aside and sought strength in numbers. And the creation of new partnerships does not necessarily stop when two institutions come together. Large networks of hospitals have formed all over the country, including some that count their affiliates in the dozens. Some of these new hospital networks make for interesting bedfellows.

Almost 1,500 hospitals merged or otherwise associated with other hospitals in the United States between 1994 and 1999, according to a study sponsored by the Catholic Health Association, based in St. Louis, Missouri. The vast majority of the 830 hospital merger agreements struck between 1994 and 1999 involved non-Catholic hospitals. A small number of the mergers (just 58, or 7 percent of the total) brought together Catholic hospitals without non-Catholic partners.

But more than one-sixth of the hospital mergers--140 in all--were deals that involved both Catholic and non-Catholic hospitals, according to the Catholic Health Association study. Those were the mergers that made things interesting from an ethical point of view, because most non-Catholic hospitals offer contraception. (Some also offer abortion, although the vast majority of abortions in the United States are done in clinics.) While most hospitals are willing to accept Catholic moral teachings on abortion as the price of admission, non-Catholic institutions usually insist on retaining sterilization among their services.

CATHOLIC HOSPITALS AND STERILIZATION

For most of their history, Catholic hospitals have not performed sterilizations. In 1971, following Pope Paul VI's Humanae Vitae, the National Conference of Catholic Bishops issued guidelines prohibiting the practice. During the early 1970s some Catholic hospitals apparently agreed to sterilize a woman if doctors deemed that her psychological health could be at risk if she were to get pregnant. (This was justified under the "principle of totality," which holds that an act which might be deemed evil when taken out of context can be considered permissible if it serves the greater good of the person.) In 1974, the US bishops, acting through Archbishop John Quinn of San Francisco, asked Pope Paul VI if this practice was acceptable.

The answer came a year later from the Vatican's Congregation for the Doctrine of the Faith in the form of a short document called Quaecumque sterilizatio. In a nutshell, that answer was No. Purposefully sterilizing cannot be justified "for the greater good of the person," the Vatican declared, because "it damages the ethical good of the person, which is the highest good, since it deliberately deprives foreseen and freely chosen sexual activity of an essential element." The Vatican warned against citing a dissenting "theological source" in order to ignore the Church's teaching authority on this matter. "Insofar as the management of Catholic hospitals is concerned," the document continued:

Any cooperation which involves approval or allows actions which are themselves… directed to a contraceptive end… is absolutely forbidden. For the official approbation of direct sterilization and… its management and execution in accord with hospital regulations, is a matter which… is by its very nature (or intrinsically) evil. The Catholic hospital cannot cooperate with this for any reason. Any cooperation so supplied is totally unbecoming the mission entrusted to this type of institution and would be contrary to the necessary proclamation and defense of the moral order.

That might have been the end of the story, except that moralists in the American health-care industry fastened on one sentence in the Vatican document that read: "The traditional doctrine regarding material cooperation, with the proper distinctions between necessary and free, proximate and remote, remains valid, to be applied with the utmost prudence, if the case warrants."

That reference to material cooperation led to a new series of questions. In November 1977 the administrative board of the US Catholic Conference (USCC) issued a commentary on the Vatican's Quaecumque sterilizatio, advising Catholic hospitals they could become involved in material cooperation with immoral procedures "in situations where the hospital because of some kind of duress cannot reasonably exercise the autonomy it has." While calling direct sterilization a "grave evil," the USCC statement cited a case in which cooperation might be justified: "The allowance of material cooperation in extraordinary cases is based on the danger of an even more serious evil, e.g., the closing of the hospital could be under certain circumstances a more serious evil."

Critics of this commentary, like systematic theologian Lawrence J. Welch, note that the USCC's administrative board does not speak for the whole National Conference of Catholic Bishops. Nor can this document be said to supersede the Vatican's document Quaecumque sterilizatio. Welch further argues that if the commentary is properly interpreted in light of Quaecumque sterilizatio, the type of material cooperation it justifies could only be mediate--that is, remote from the action itself.

Nevertheless, in practical terms the USCC commentary is very important because it provides the ground on which Catholic hospitals have been able to justify material cooperation with sterilization. Specifically, the USCC seems to indicate that a Catholic hospital can accept some alliance with institutions that provide sterilization if a hospital might go out of business otherwise. Supporters of controversial mergers between Catholic and non-Catholic hospitals often point to this document as the basis for their decision to go ahead with the deals.

Welch's critique of the USCC position, made in a 21-page article in the November 1999 issue of a Catholic Medical Association journal called The Linnacre Quarterly, is a complex argument. For one thing, he contends that the National Conference of Catholic Bishops made some mistakes in its 1976 unofficial English translation of Quaecumque sterilizatio--including a statement that hospital administrators could not "consent" to contraception when the Vatican actually said they could not "allow" contraception. Welch also makes a carefully calibrated analysis of Church documents and their relative doctrinal weight, including keys to solving apparent contradictions.

The subtlety of Walsh's analysis shows why applying the already difficult Catholic principle of cooperation is a minefield. It also shows why arguments about cooperating with sterilization often degenerate into what lawyers call a battle of the experts. Msgr. Broussard, a supporter of the lease agreement in Austin, summed up the conflict this way: "We had our competent ethicists and they had their competent ethicists, and there was just a disagreement."

MORE CLARIFICATIONS

The open-ended appeal to "duress" in the 1977 commentary led the USCC to release a clarifying statement on tubal ligation in 1980. The new statement implied (in a somewhat roundabout fashion) that justifying "duress" ought not be derived from a patient's particular case, and probably would not a factor at all since the United States guarantees religious freedom. But the new statement said nothing about the hospital-closing scenario that had been floated in 1977.

In 1981 the US bishops released a "Pastoral Letter on Health and Health Care," which urged Catholic hospitals to resist pressures to provide abortion and sterilization. In 1994, the bishops passed the Ethical and Religious Directives for Catholic Health Care Services, which prohibits any cooperation with abortion but describes principles of material cooperation with sterilization for Catholic hospitals associating with non-Catholic hospitals. (The directives are not technically binding, as each bishop has authority in his own diocese, but the document comes with a note stating the directives are "recommended for implementation by the diocesan bishop.")

The Ethical and Religious Directives meet the question of contraception directly:

Catholic health institutions may not promote or condone contraceptive practices… Direct sterilization of either men or women, whether permanent or temporary, is not permitted in a Catholic health-care institution when its sole immediate effect is to prevent conception. …"

The Directives make an exception for the patient who may become sterile as the result of treatment for a serious disease--such as the male cancer patient rendered sterile by radiation or the female who must have a cancerous uterus removed. Such treatment is justified by the principle of double effect, since the aim is not to contracept but to remove cancer cells.

But the waters become a little muddier when the bishops' statement comes to the question of hospital mergers. The document notes that "new partnerships can pose serious challenges to the viability of the identity of Catholic health-care institutions and services… especially when partnerships are formed with those who do not share Catholic moral principles." So the document says local diocesan bishops must be involved in the negotiations and sign off on any deals. Yet critics note the document is thin on direct advice for those bishops.

Directive 69 simply states: "When a Catholic health care institution is participating in a partnership which may be involved in activities judged morally wrong by the Church, the Catholic institution should limit its involvement in accord with the moral principles governing cooperation."

But what are those principles? The Church's traditional teaching regarding material cooperation is anything but self-explanatory.

NUANCES OF COOPERATION

The principles governing cooperation with evil are among the trickiest in moral theology. Catholic moral teaching never allows doing evil to accomplish good. But it does allow certain carefully circumscribed forms of cooperating with evil to prevent the occurrence of a greater evil.

The hermit living in his cell has no need to cooperate with evil, but social beings by definition interact with others. Citizens, for instance, might pay taxes to a government that funds evil projects. They might buy stock in mutual funds that may include companies that contribute to evil. They might buy products from stores that may also sell evil products, or even from stores that may be owned by evil people. They might enjoy movies produced by rich people who contribute to evil political candidates.

The questions for the person who worries about making moral decisions are: How close is the cooperation? How evil is the evil? How evil would the consequences of not cooperating with the first evil be? To pass the moral test, cooperation with evil has to overcome several hurdles: The cooperator cannot intend the evil to occur; he cannot be participating in something so evil that cooperation could never be justified; he cannot cause scandal by leading others into evil.

Under the analysis of moral theologians, the same mechanical action can be viewed at several different levels, depending on the intent of the cooperator and the circumstances of the action. The person who cooperates with evil while intending the same evil result as the actual doer of the evil is said to be formally cooperating. The Church says that this is always wrong. If the cooperator does not intend the evil himself, but realizes clearly that his cooperation will help to produce the evil, that is called implicit formal cooperation, and again is always wrong.

If the cooperator does not intend the same evil as the person performing the act, his involvement is called material cooperation. Material cooperation is broken down by moralists into two categories: immediate and mediate material cooperation. Immediate material cooperation implies direct or essential participation in the bad act--without, however, any intent that the evil occur. (In practice, material cooperation is very similar to implicit formal cooperation and can even be identical.) Immediate material cooperation is always wrong, except in some cases when the cooperator is under duress.

Mediate material cooperation implies an indirect or remote contribution to the evil. It is in this category that the most interesting moral arguments are made.

Of course any cooperation in an evil act can only be justified if some other evil would result from failure to cooperate. And even in those cases, cooperation may not be justified if it would give rise to scandal. The final principle cited by the Ethical and Religious Directives is this:

The possibility of scandal, e.g. generating a confusion about Catholic moral teaching, is an important factor that should be considered when applying the principles governing cooperation. Cooperation, which in all other aspects is morally appropriate, may be refused because of the scandal that would be caused in the circumstances.

ETHICAL AND RELIGIOUS GAPS

The release of Ethical and Religious Directives clearly did not end the discussion of how Catholic moral teachings should be applied to the practical question of hospital mergers. Father James Keenan, a Jesuit priest and professor of moral theology at the Weston School of Theology in Cambridge, Massachusetts, has argued the Church's teaching can permit what he considers immediate material cooperation under duress. In an article in the August 1997 issue of The Linnacre Quarterly, Father Keenan offers a hypothetical example of a Catholic hospital in which obstetricians demand to be able to perform tubal ligations after delivering a baby by Caesarean section. They plausibly threaten to leave the hospital if they are not allowed to do tubal ligations there, and if they left, hospital administrators believe they would have to stop offering obstetric services. Under such duress, Keenan argues, the Catholic hospital can approve the sterilizations in those limited circumstances rather than abandon the local women who need obstetrical care. "Would women find a set of values like those of the Catholic health-care facility at the community hospital or wherever the obstetrics team eventually offered their services?" Keenan asks in the article. He continues his argument by saying that a public explanation of the circumstances and details of this arrangement could help to prevent confusion about Church teaching. "Scandal could be avoided by explaining the duress and the limited number of exceptions being provided," Father Keenan reasons. "By the cooperation, the health-care facility is still able to offer its services while promoting its Catholic values."

Lawrence Welch rejects Keenan's argument, calling it an "excessive claim" for material cooperation. The acts are not permissible, cooperating with them closely is not permissible, and scandal is sure to follow, Welch contends. "The real scandal involved here is that intrinsically evil acts that always harm the person are being performed at that hospital, and that can lead other people into sin, by making them think that those acts are morally permissible," Welch says.

Yet if scandal implies leading people into sin, is it realistic to say that hospitals are making people doubt the teaching of Humanae Vitae? "That seems unlikely, because you've got a populace that's not giving much credence to it anyway," says Father Gerard Magill, director of the Catholic Center for Health Care Ethics at St. Louis University. Msgr. Broussard agrees. "I hardly think you can lead them into sin because they're already practicing birth control," he says.

Father Magill, a priest of the Diocese of Motherwell in Scotland who has taught at St. Louis University since the late 1980s, has been brought in as a consultant on Catholic hospital mergers. He sees an inconsistency between what he regards as the hard line the American bishops are taking on sterilization at Catholic-run hospitals and their relative timidity on artificial contraception. "What I find astounding is the silence of the bishops about the imposition of the doctrine," says Magill. "And the silence of the bishops in this country is absolutely astounding given the weight the Pope has put behind this teaching."

"Why is the episcopal voice so silent on the bigger doctrine, which is Humanae Vitae, and so strenuous on this doctrine of sterilization [in Catholic-run hospitals], which is so much less extensive in terms of disobedience?" Magill asks.

Some critics of Catholic hospital mergers claim that administrators find it easy to justify cooperating with sterilization, because they don't see it as evil in the first place. That's not fair, according to Magill, who describes hospital administrators as believers who are not trying to create problems with Church authority.

"Catholic health care is faithful to the teachings of the Church, and it follows the Ethical and Religious Directives," says Father Michael Place, executive director of the Catholic Health Association. "Sure, we're in a world where we have complexities we've not faced before. We're trying to figure out what is correct, what is faithful."

DEEP IN THE HEART OF TEXAS

These are the sorts of complexities that Seton Healthcare Network had to consider when the opportunity to lease Brackenridge Hospital from the City of Austin arose in the mid-1990s. The resulting agreement and the resistance to it reflect tension between different perceptions of the Church's social and moral teachings.

In the early 1990s Austin, the capital city of Texas, was looking to get rid of Brackenridge Hospital, which was losing money. Seton Healthcare Network operated the Catholic hospital in Austin called Seton Medical Center. (Seton Healthcare Network was then owned by the Daughters of Charity National Health System. In November 1999 that system merged with another Catholic health care network to form Ascension Health.) The city hospital mainly served poor people, as did Seton Medical Center.

Observers disagree on whether the situation at Brackenridge posed a threat to the Catholic hospital run by Seton. One theory goes that if the city had closed Brackenridge, all the poor people of Austin would have gone to Seton Medical Center, and since they couldn't pay they would have eventually put Seton Medical Center out of business. Another account says that Seton Healthcare Network had been pestering the city of Austin to acquire Brackenridge for some time because it made good business sense. In any case, the two sides saw their missions as compatible and their fates as linked. "It became a really good alliance for the two to join," says Patricia Hayes, now a vice president of Seton Healthcare Network.

While consulting with the local diocese, as required by the Ethical and Religious Directives, Seton began negotiating an agreement with the city of Austin. The 30-year lease called for Seton to pay the city for the use of the building, and the city to pay Seton for the provision of medical services to the poor.

Before the deal, Brackenridge performed a handful of abortions--perhaps one a year during the last five years that the city ran the hospital, according the local Planned Parenthood affiliate. That could not continue if Seton were to run Brackenridge. So abortion, which was never a featured service at Brackenridge, is not offered at all there now.

But contraception was another matter. The city stuck fast by its family planning services, which included tubal ligations and counseling about contraception and abortion. So Seton administrators and Bishop John McCarthy of Austin consulted with several Catholic experts. With Bishop McCarthy's consent, Seton announced that it would run Brackenridge as a non-Catholic hospital, even though it was and is a Catholic health-care corporation. So Brackenridge would continue to provide sterilizations, dispense contraceptives, and providing abortion referrals. (Seton would never provide abortion referrals itself; that service was provided by the city.)

The diocese tried to sell the deal to local Catholics by sponsoring public meetings at which ethicists explained the reasoning behind the deal. Since Seton was under duress and might collapse if it did not agree to run Brackenridge while continuing sterilizations, the diocese contended that the deal was justifiable. The diocese's experts argued that materially cooperating with sterilization under duress could be justified under the Ethical and Religious Directives.

Some Catholics cried foul. Seton's attempt to distance itself from sterilizations at Brackenridge amounted to a bureaucratic sleight