EMERGENCY!

How A City-Owned Hospital In Florida Wound Up Operating Under The Catholic Bishops' Control -- And What Americans United And Its Allies Are Doing About It

Sister Pat Shirley was not happy. The Roman Catholic nun had just learned that a local woman whose fetus had Down's Syndrome had received an abortion at St. Petersburg's Bayfront Medical Center.

Sources familiar with the situation say an angry Shirley marched into the next meeting of the hospital's ethics committee, of which she is a member, waving around an edict issued by the Catholic bishops and insisting that no more abortions take place at Bayfront.

She soon got her way. Bayfront's policy on abortion now mirrors Catholic dogma.

In a separate case, a woman in her seventh month of pregnancy had a sonogram that revealed that her fetus had no bladder or kidneys and severely under-developed lungs. She requested an abortion, but Bayfront refused. The woman was forced to carry the fetus to term; it lived about 30 minutes.

Situations like this might have been expected at a Catholic hospital, since those institutions routinely ban all abortions as a violation of church doctrine. But Bayfront isn't a Catholic hospital. In fact, it is taxpayer supported, occupies land owned by the municipal government and, although managed by a private group, is considered a city-owned hospital.

How did a Catholic nun get the power to determine health care at a publicly supported medical institution like Bayfront? Critics of the situation in the Tampa-St. Petersburg area are asking the same question. And, not happy with the arrangement, they've enlisted Americans United's help to put a stop to it.

A number of dramatic changes have occurred at Bayfront since 1997. Ethical decisions about the medical care doctors could provide at the facility used to be made on the basis of standard medical criteria. Now they are made by an "ethics committee" that includes Shirley. The hospital used to provide elective abortions. Now the facility bans all abortions -- even when the pregnancies are the result of rape or incest.

Employees at Bayfront used to answer to medical codes of ethics as they performed their duties. Now every doctor, nurse, health care professional, student intern, staff member and volunteer is required to sign a statement pledging to abide by a series of restrictive health-care regulations promulgated by the Catholic bishops.

What happened at Bayfront isn't unusual. In recent years, dozens of non-sectarian hospitals have merged with Catholic institutions. In the process, the non-sectarian hospitals have often agreed to abide by Catholic teachings on reproduction and other issues. This means no abortions, no distribution of contraceptives and no sterilizing operations such as vasectomies and tubal ligations. In addition, the hospitals have agreed to follow church doctrine on end-of-life issues and may ignore a patient's living will if it is deemed in conflict with church dogma.

What is unusual is that Bayfront operates as a city hospital, in a city-owned building and is subsidized by taxpayer funds. Therefore, opponents of the merger charge, the 300-bed hospital had no legal right to agree to subordinate health care to Catholic doctrine. In fact, they believe the hospital is violating the separation of church and state and have gone to court to make that argument.

On Aug. 16 Americans United and three other advocacy organization joined forces to put an end to the merger. AU and the other groups, the National Organization for Women Foundation, the American Civil Liberties Union of Florida and Planned Parenthood of Southwest and Central Florida, joined as plaintiffs with four local residents. Among them is Elizabeth Lindenberg, the St. Petersburg woman whose decision to abort her fetus in November of 1997 made Shirley so angry.

Lindenberg told Church & State that a hospital employee who attended the meeting filled her in on what happened. "She told me, `Your name was used, your decision was denigrated,' Lindenberg said. "My source also told me that Bayfront was becoming a Catholic hospital. It irked me that things were changing and no one knew it."

Legal experts at Americans United say the lawsuit is the first of its kind. If successful, it could have a dramatic impact on the issue of hospital mergers and affect communities far beyond Florida.

Mergers between Roman Catholic and non-sectarian hospitals continue at a rapid pace across the nation. According to Catholics for a Free Choice, 105 mergers have occurred between Catholic and non-sectarian private hospitals since 1995. In at least half of those cases, reproductive services were curtailed or eliminated entirely.

In instances where private, non-sectarian hospitals chose to merge with Catholic institutions, legal options are limited, although community pressure and public education campaigns have been successful in some areas of the country. In the St. Petersburg case, however, one of the merger partners is a city-owned hospital. This gave Americans United the opening to file a lawsuit in federal court.

"Public services should never be forced to conform to religious dictates," said Barry W. Lynn, executive director of Americans United. "This arrangement violates church-state separation by allowing one denomination to exercise control over an essential public service."

Controversy over Bayfront stems back to 1997, when hospital officials agreed to enter into an alliance with several private hospitals that operate under the name Baycare Health System. Baycare consists of eight non-profit hospitals in the Tampa-St. Petersburg area. Although only two of the eight hospitals are Catholic, church officials insisted that all hospitals in the alliance adopt the church's health-care directives. When Bayfront joined the agreement, it too had to accept the church regulations.

Bayfront has been run by a private company for the past few decades, operating under a lease with the city whereby it pays a nominal fee of ten dollars per year for the building. It was formerly city owned and is now used by the city to provide services normally available at public hospitals.

City officials signed off on the plan but later said they were not aware that the merger would mean an end to certain medical services. In the summer of 1999 the Tampa Tribune reported that Bayfront had stopped providing abortions, leading angry city officials to insist that the hospital was violating provisions in its contract that forbid discrimination on religious grounds. Unable to reach a settlement on the matter, the city decided to sue Bayfront. The hospital then counter sued.

Exactly what services have been discontinued and which are still available at Bayfront is a point of some controversy. A hospital spokeswoman told reporters that abortion is the only procedure that has been terminated. She insisted that the facility still offers sterilizing operations and birth control pills -- even though these services violate the Catholic directives.

Merger critics are skeptical of claims that Bayfront is willing to bend on the directives and respond that even if it is true for now, it might not be the case in the future. They point out that in other communities where Catholic and non-sectarian hospitals have merged, reproductive services gradually withered away or were transferred off site, making them less accessible.

"Right now they are saying the only restrictions are on abortion," said Irene Miller, a St. Petersburg resident who is one of the plaintiffs in the lawsuit. "But the agreement that employees of Bayfront have to sign says they will follow the Ethical and Religious Directives of the National Conference of Catholic Bishops. Even though they are saying right now that it applies only to abortion, they can change it tomorrow, they can change anything. If it goes to a committee, who knows? I was very upset once I saw that."

Miller, who serves on the steering committee of the Tampa-St. Petersburg Chapter of Americans United, said she believes the medical staff at Bayfront has a lot at stake in the case as well.

"This is not simply a case of patients being affected by the religious directives, but physicians are too," Miller, a retired high school counselor, told Church & State. "They might very well be prevented from performing the medical procedures they deem important."

Seeking to avoid a long, costly lawsuit, a judge ordered the parties into mediation after the city filed its lawsuit against the hospital last March and Bayfront countered with its own lawsuit. Those talks continue, but Americans United and the other advocacy groups want to be a part of the discussions to make sure that the interests of the community are fully represented; they hope that the new lawsuit will provide that entree.

Marcia Cohen, a St. Petersburg attorney who is handling the case in Florida for Americans United and the other organizations, said the lawsuit is not an attack on Catholicism. The plaintiffs, she said, believe publically funded institutions should be free from all forms of sectarian control.

"It is unconstitutional for a religious gatekeeper to, determine the nature of health care services in a public hospital," Cohen said. "Bayfront serves patients of many different faiths and backgrounds whose religious freedom must be protected. Their health care choices should be based on the best medical advice, not on religious restrictions."

The restrictions Cohen refers to are encapsulated in a series of 70 regulations called the "Ethical and Religious Directives for Catholic Health Care Services," first approved by the U.S. Catholic bishops in 1971 and updated in 1994. Among other things, the directives forbid all abortions, vasectomies, tubal ligation, in vitro fertilization and the distribution of artificial contraceptive devices. The directives also give Catholic hospitals the right to nullify patients' end-of-life instructions, which are often outlined in so-called "living wills," if their provisions conflict with church teachings.

Some Catholic hospitals interpret the directives quite strictly. They will not offer condoms to patients infected with AIDS or give "emergency contraceptives" to rape victims. In other cases, doctors working at non-sectarian hospitals that have merged with Catholic institutions have been told they can't even give patients referrals for services the hospital itself may not provide.

Although some hospitals bend the rules on contraceptives after merging with Catholic institutions, attorneys at Americans United and other advocates of church-state separation worry that church leaders may eventually choose to crack down on Catholic hospitals that fail to rigorously enforce the directives. They note that the U.S. bishops recently announced plans to increase the sectarian flavor of Catholic colleges and universities and say church-related hospitals could easily be next. Also, individual bishops who fail to enforce the directives could suddenly be replaced at death or retirement by bishops who toe the hard line.

This concern is not merely theoretical. In Austin, Texas, Brackenridge Hospital, a public facility being managed by a Catholic health care group, is under fire from ultra-conservative Catholics because it continues to offer sterilizing operations and birth control, as city officials stipulated in writing before agreeing to the arrangement. Austin Archbishop John McCarthy approved the deal and forged a compromise that allows personnel not affiliated with the Catholic health care agency to perform the sterilizing procedures and that permits city workers to offer on-site pregnancy counseling that includes information about abortion and birth control.

But angry traditionalist Catholics went over McCarthy's head and bombarded the Vatican with complaints. The Vatican responded by repeatedly ordering McCarthy to change the hospital's policies, commands he has so far resisted.

The situation in Austin remains a standoff, but that may be about to change. Last June, the 70-year-old McCarthy announced that he will soon retire. The Vatican has already named his replacement -- Bishop Gregory M. Aymond from the Archdiocese of New Orleans. Aymond is considered much more conservative than the moderate McCarthy and has been hailed by ultra-conservative Catholics for his willingness to follow orders from the Vatican.

As the Texas incident shows, sectarian control of public hospitals is not an issue confined to Florida. The St. Petersburg case, if successful, could lay down a powerful precedent that will undoubtedly be useful in blocking similar mergers elsewhere.

Shortly after Americans United filed the lawsuit, a similar case came to light in Newport, Ore. There, a group of taxpayers is protesting an "affiliation" agreement between the financially strapped Pacific Communities Health District, a government agency that runs several small public hospitals and health care clinics, and the Catholic-run Providence Health System.

According to local press accounts, the agreement calls for Providence to operate a 48-bed hospital and clinic owned by Pacific Communities, as well as health clinics in three nearby communities. Residents who oppose the deal say they are concerned that the hospital, which serves a population living in a mostly rural area along the coast in central Oregon, will cut off reproductive health care, leaving the people who rely on those services with nowhere else to go.

Art LaFrance, an attorney working with merger opponents, acknowledges to the Portland Oregonian that many Catholic and non-sectarian hospitals have merged recently but said this case is different because "they propose to merge a public hospital into a private religious system, but to keep the district alive and keep its bonding authority going to support the operation of a Catholic system."

Rose Jade, also a merger opponent, added, "The [agreement] clearly states that Providence will run the health district as a ministry of Jesus, and there's this thing called the separation of church and state."

Opponents of the merger have formed a group called the Ad-Hoc Committee on Hospital Affiliation. Committee members have filed a lawsuit that is currently pending in state court and is scheduled to be heard next month. In the meantime, the merger, which was supposed to have taken place in July, is on hold.

Attorneys at Americans United say the hospital merger issue is clearly one with national implications that could lead to a new wave of litigation and grassroots activism as defenders of church-state separation and full medical care seek to keep local health care institutions free from sectarian control.

The issue has galvanized activists in many communities. In New York, advocates of family planning and women's health care have formed a group called Merger Watch that tracks mergers between non-sectarian and sectarian hospitals nationwide. The group also offers advice for community residents concerned about these mergers. (Merger Watch can be reached online at www.mergerwatch.org.)

Activists say community pressure remains a potent weapon to block these mergers. In recent months, some proposed mergers have collapsed and existing ones have been dissolved because of organized opposition from grassroots activists concerned about the loss of reproductive services at hospitals.

In other cases, litigation may spur hospital officials to seek a compromise. As Church & State went to press, attorneys with Bayfront Hospital in St. Petersburg were considering the possibility of removing the institution from the alliance as a way of settling the case.

"We are open to any reasonable settlement," said Ayesha Khan, AU litigation counsel. "But the bottom line is, we are not going to compromise on our core values and beliefs. No public institution, including health care facilities, should be subject to sectarian control."

Continued Khan, "Public institutions are supported by taxpayers and must remain open to all without regard to religious or philosophical beliefs. They have no right to impose religious dictates on people. Americans United will continue to monitor this issue to make sure that everyone's rights are protected."