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 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. . . .”

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,” say 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 to 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 provide 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-of-hand, they claimed. Since Seton officials seemed to want the sterilizations to continue at a hospital they would be managing, their association with sterilization amounted to formal cooperation with evil, critics said. “I looked at this and I was astounded that people couldn’t see this,” says Robert Fastiggi, who at the time taught religious studies at St. Edward’s University in Austin.

Defenders of the deal insisted that Seton did not intend for the sterilizations to occur, but only allowed them in order to stay in business. “Seton doesn’t want to fool around with tubal ligations. That’s the last thing they want to do,” says Msgr. Broussard. “But the Church has said you can cooperate.”

In May 1995, the city council approved the lease, which was to begin October 1 of that year. A group calling itself Concerned Catholics in Austin objected and appealed to Cardinal Joseph Ratzinger of the Vatican’s Congregation for the Doctrine of the Faith, with help from the St. Joseph Foundation of San Antonio, Texas. Within two weeks, the secretary of that Congregation, Archbishop Tarcisio Bertone, sent a letter to Bishop John McCarthy requesting information about the arrangement between Seton and the city. This correspondence began a five-year cat-and-mouse game between the Vatican and the Diocese of Austin. The details of that game are set forth in extraordinary detail in several letters which have been obtained by Catholic World Report.

The Rome-Austin correspondence
Fastiggi, who now teaches at the Archdiocese of Detroit’s seminary, says that while he was still living in Austin he received an anonymous packet in the mail containing copies of correspondence between Bishop McCarthy and the Vatican. They show a local bishop fending off Rome while scrambling to plug perceived holes in the dike.

In the beginning, Seton planned to provide sterilizations and contraceptives through their own employees, on the theory that Brackenridge was not a Catholic hospital and therefore did not have to abide by Catholic moral teachings. The actual deal worked out between the city and Seton called for sterilizations at Brackenridge to be done by a third party, HealthSouth. City-paid employees of the Austin/Travis County Health and Human Services Department were to provide counseling about birth control and abortion, dispense oral contraceptives, and make abortion referrals. (Indeed, a memo from Seton’s chief executive officer, Charles Barnett, dated five days before the Seton takeover, informed administrators and staff that Brackenridge’s previous policies concerning contraceptives, sterilization, and birth control information would not change.) Critics claim Seton was in effect paying for these services, since the city increased Seton’s lease payment to cover the cost.

Subsequent tinkering with the agreement was done in order to erect a “wall of separation” between Seton and sterilization, putting distance between Seton and the financing of contraception. Indeed, Seton administrators and the Diocese of Austin believe they now have such a wall in place. Patricia Hayes, a Seton vice president, describes the contraceptive services at Brackenridge as the city of Austin providing city services in a city-owned building. Seton, she says, has nothing to do with these services.

But the distance Seton has tried to put between itself and the sterilizations performed at Brackenridge has not impressed the Vatican, which has sought for several years to have sterilizations stopped there. In June 1995, shortly after Bishop McCarthy responded to Archbishop Bertone with details of the lease, Archbishop Bertone wrote back opposing the deal.

Bishop McCarthy wrote to him on July 15 of that year detailing a new arrangement approved by Catholic ethicists called in to strengthen the so-called “wall of separation.” But for some reason, Bishop McCarthy’s letter did not reach Archbishop Bertone until December of that year—five months later. (Italian mail service is notoriously inefficient, but Bishop McCarthy’s health-care adviser, Msgr. Broussard, said in an interview that all correspondence proceeded according to protocol through the apostolic nuncio in Washington, DC, meaning that the letters went to Rome by diplomatic pouch.) When Bishop McCarthy didn’t hear back from the Vatican, he allowed Seton to sign the lease.

Msgr. Broussard maintains that if the Vatican had responded before the lease was signed in 1995, the ensuing conflict might have been avoided, because the deal would not have gone forward. Opponents of the lease counter that in light of the Vatican’s initial objections Bishop McCarthy should not have approved the revised lease before getting approval from Rome. In March 1996, five months after the lease went into effect, Archbishop Bertone advised Bishop McCarthy to hold off on the lease until it could be reviewed further. Bishop McCarthy responded two months later saying the lease had already been signed.

A subsequent story about the lease in Our Sunday Visitor, a Catholic weekly newspaper, in October 1996 caught the Vatican’s eye, and in February 1997, Archbishop Bertone sent a cordial yet purposeful letter to McCarthy. He included three direct questions, with obvious implications if the answers were affirmative:

• Are there some persons who work in the hospital building and receive payment or compensation from both Seton-Brackenridge and HealthSouth?
• Are there some persons who receive payment from Seton-Brackenridge for providing morally permissible medical treatment or procedures, while also receiving payment from HealthSouth for providing or assisting in morally impermissible procedures (for example, sterilizations) performed in the same building?
• Is it ever the case that, in the course of treating an individual patient, persons who work in the hospital could be paid by Seton-Brackenridge for certain aspects of the patient’s treatment and by HealthSouth for those aspects which are not consistent with Catholic moral teaching?

A direct order
Six weeks later Bishop McCarthy wrote back admitting the facts presumed by the questions. Archbishop Bertone replied in June 1997 with a letter stating that the “wall of separation” between Seton and the sterilizations did nothing to change the essential facts of the situation: that direct sterilizations were being performed at a hospital under Catholic administration. He enclosed a copy of the 1975 Vatican document Quaecumque sterilizatio, explaining that “direct sterilizations can never be part of the medical treatment provided to patients in a hospital which is under Catholic administration.” Near the end, Archbishop Bertone issued an order: “After full and careful deliberation, this Congregation directs Your Excellency to ensure that direct sterilizations, as well as any other contraceptive programs, immediately and permanently cease at Brackenridge Hospital.”

Bishop McCarthy waited three months to respond, explaining that he had “been meeting with a committee of civil lawyers, canon lawyers, health-care representatives, and health-care ethicians to explore the possibility of a new structure which could remove these prescribed services.” But he implied that he had other issues to deal with, too, including “the survival of Catholic health care ministry” and “his responsibility to the poor of Central Texas and the survival of Seton Medical Center.” The final paragraph of his letter refers to the “slow and cautious process” of the lease agreement and the “very serious civil legalities” it entails—probably a reference to the $10 million penalty Seton Healthcare Network would have to pay the city of Austin if it violated the lease.

On December 10, 1997, Bertone wrote a terse letter to McCarthy saying his response was not good enough, and reminding him that the Vatican had ordered him the previous June “to ensure that direct sterilizations, as well as contraceptive programs, immediately cease at Brackenridge Hospital.” Bertone repeated that order, “even if the various elements of a new lease agreement have yet to be finalized,” and asked for documentation proving that sterilizations and contraceptive programs had stopped at Brackenridge.

McCarthy responded on December 30, 1997, skirting the order to stop sterilization and contraception at Brackenridge. He explained that he was negotiating with city officials “to build greater distance between Seton Medical Center’s governance of Brackenridge and cooperation with certain immoral services”:

The City of Austin, as owner of Brackenridge Hospital, has agreed to assume the responsibility for providing the proscribed medical procedures, thus removing Seton Medical Center from their present involvement in such procedures and from any previous cooperation. This arrangement has been reviewed by several health-care ethicists and found to be appropriate and in accordance with the requests in your correspondence. Further, medical experts now state that procedures, such as tubal ligations, should not be performed immediately after childbirth as they are presently done. Rather, these procedures should occur some four to six weeks after delivery. In other words, as a result of these medical findings, those tubal ligations would be provided by the City on an outpatient basis at a site other than Brackenridge Hospital.

Seton declined to describe how sterilizations are done at Brackenridge today. “We don’t disclose that information,” says Gayle Granberry, a Seton spokesman. She also declined to discuss why Seton does not provide such information.

The information is hard to come by. The city health and human services department spokesman, Bob Flocke, said he doesn’t know, as did the assistant city manager who negotiated the lease. A recent story in the Austin American-Statesman estimated about one sterilization per day occurs there. “I can tell you that it’s quite a bit,” a source familiar with Brackenridge tells Catholic World Report. “Quite a few are done.”

The most common sort of sterilization procedure performed at Brackenridge, according to the same source, is a tubal ligation performed after a Caesarean delivery. For the last year and a half or so, Caton Services, Inc. of Austin has provided nurses and technicians for tubal ligations, for which the company then bills the clinic at an hourly rate. Seton nurses are present, but do not participate in the surgery. The actual operations are usually done by the same physician who delivers the baby. The physician’s services for delivering the baby are charged to Seton, but the tubal ligation is charged to the city of Austin. According to Msgr. Broussard, the physicians at Brackenridge are not Seton employees, because Texas law requires that physicians at hospitals be paid by an outside provider.

Patients at Brackenridge also have access to information about birth control and abortion, provided by city-paid social workers who counsel the women and make abortion referrals, according to Bob Flocke.

The bishop’s departure
Conflict over these practices at Brackenridge has not gone away, but Bishop McCarthy plans to leave Austin soon. In June 1998 McCarthy went to Rome for his ad limina visit. Cardinal Joseph Ratzinger discussed the Seton lease with him, the bishop told the Austin American-Statesman a few weeks later, although he declined to give details of the discussion.

Earlier this year, McCarthy asked the Vatican to appoint a co-adjutor bishop to help him administer the Diocese of Austin. The Pope named Bishop Gregory Aymond, formerly an auxiliary bishop in New Orleans, as co-adjutor with right of succession upon McCarthy’s death or resignation. More recently Bishop McCarthy announced plans to retire before the end of this year. Since he is now 70, his resignation comes five years before canon law requires it. Bishop McCarthy did not return calls from Catholic World Report seeking comment.

Patricia Hayes reports that Bishop Aymond has been involved in discussions about Seton’s lease with the city, but that he has not yet called for any changes in the way Seton operates Brackenridge. “The dialogue is much more collaborative. We are just as committed to making sure this is in line with Catholic teaching,” Hayes says.

The city of Austin is very happy with Seton’s management of Brackenridge. “They’ve been outstanding,” says Austin assistant city manager Betty Dunkerley. She adds that the city is ready to negotiate further changes to its agreement with Seton. “We’re going to continue to protect each other,” she says, referring to the city’s health-care needs and Seton’s relationship with the Church.

For now, supporters of access to contraception have no problem with Seton’s administration of Brackenridge. “The arrangement gets tenuous at times, but it has continued, and I do believe the services that were specified in the lease are continuing. And that’s what we’re concerned about—that they live up to the agreement,” says Parks, of the local Planned Parenthood affiliate. “They’re fulfilling their obligation. That’s the bottom line for us. How they do it is their problem.”

The Austin case remains a bellwether example of a national conflict within the Church. Supporters call it a good-faith application of Church teachings on cooperation. Opponents call it just plain wrong. “There are some Catholic ethicists that have not interpreted the doctrine of the Church well for hospitals that are relying on their expertise,” says theologian Welch. “In the Austin case, the health-care facility relied on ethical advice that misinterpreted the doctrine of the Church.”

A national issue
Seton Healthcare Network is not the only example of a Catholic corporation that runs non-Catholic facilities.

Catholic Healthcare West, formed in 1986 out of the merger of two Sisters of Mercy hospital networks, owns and operates 47 hospitals in California, Arizona, and Nevada, according to spokesman Lori Aldrete. Of those, the corporation runs 30 as Catholic hospitals. “We abide by the Ethical and Religious Directives as interpreted by the local bishop,” Aldrete says. “I think overall, elective sterilization is not allowed. . . .”

But Catholic Healthcare West also operates 17 institutions as non-Catholic “community hospitals.” Before affiliating with the corporation, each community hospital must agree to “Common Values for Community Sponsorship,” in which they must forswear elective abortions and in vitro fertilization, but they can continue to provide elective sterilizations. Thus Catholic Healthcare West is not cooperating with abortion but it is cooperating with sterilization—if only through its non-Catholic holdings.

“The idea of converting a community hospital to a Catholic hospital is not an approach that we’ve taken, and only the Catholic hospitals are obligated to follow the Ethical and Religious Directives,” says Aldrete, vice president of communications at Catholic Healthcare West in San Francisco. She points out that all such arrangements are submitted to the local bishop for his approval.

MergerWatch, a nonprofit watchdog group in Albany, New York, has identified about 15 hospital alignments over the last decade in which deals involving religious institutions have threatened access to abortion or contraception. Threats to those services arose from planned mergers involving formerly non-Catholic hospitals in Seattle, Washington; West Palm Beach, Florida; Elizabeth, New Jersey; Gloversville, New York; South Miami, Florida; and St. Petersburg, Florida. The group also reports that merger deals over the last several years collapsed over ethical disputes in Baltimore, Maryland; Cape Girardeau, Missouri; Enid, Oklahoma; Manchester, New Hampshire; Niagara Falls, New York; Wilmington, Delaware; and Avon, Connecticut.

These situations worry the advocates of access to contraception and abortion. Lois Uttley, executive director of MergerWatch, says:

We believe in trying to honor the different religious beliefs and perspectives of different denominations, and really what we’re asking here is that Catholic hospitals honor the principles and beliefs of people of other faiths, in hospitals that are not Catholic. It does not seem to us to be respectful to require the non-Catholic facility to adopt the Ethical and Religious Directives. In the United States we honor religious freedom, and that freedom should hold true to people of other faiths, as well as to religiously based hospitals.

Another watchdog organization is the Advocates for Reproductive Choice in Healthcare, formed about 1996 as a joint project of the National Health Law Program and the California Women’s Law Center in Los Angeles. Susan Fogel, legal director at the law center, maintains that full access to contraception and abortion is a basic human right, and she argues that patients should not be burdened by somebody else’s religious scruples. She singles out Fidelis Care New York, one of a handful of Catholic health maintenance organizations nationwide, for not providing “adequate” services or information concerning abortion and contraception.

Fidelis was formed in 1995 in response to policy shifts in New York state. After Republican Governor George Pataki was first elected in 1994, New York’s state government acted to move all Medicaid recipients into managed care systems in order to cut costs. Bishops of the eight dioceses of New York state responded by forming Fidelis. “They wanted to ensure their continued ministry in health care, particularly serving the poor and medically underinsured,” says Mark Lane, chief executive officer of Fidelis. “It was not from a business perspective. It wasn’t from a perspective of imposing our moral view on the community.”

Fidelis now serves about 105,000 people in 34 New York counties, who qualify either for Medicaid managed care or for a program called Child Health Plus. But it does not cover abortion or contraception. Instead, under a “carve-out” agreement with the state of New York, members of the health plan must go elsewhere to claim coverage for or get information about abortion and contraception.

That approach is unacceptable to Susan Fogel, who believes that health plan members should not encounter any inconvenience when seeking contraception or abortion. “I don’t believe a huge health-care system that has control over the lives of hundreds of thousands of people should get to make health-care decisions for them,” Fogel said. She also argues that the state should, through its licensing authority, require all hospitals to provide contraception and abortion.

Last June, the American Medical Association’s House of Delegates considered a resolution calling for all hospitals to provide these services. The measure, Resolution 218, was sponsored by physicians in California perturbed by a Catholic takeover of a formerly non-Catholic hospital in Gilroy, California. According to Fogel, who has closely monitored the situation there, a hospital owned by Catholic Healthcare West acquired the formerly non-Catholic hospital, closed its own building, and established the new hospital as Catholic. Then the new administration ended sterilizations. The closest hospital that does them is up to an hour away in traffic, Fogel said.

The American Medical Association resolution drew national attention when the Catholic Health Association arranged for Cardinal Francis George, the archbishop of Chicago, to speak against the resolution before the House of Delegates. The House of Delegates later defeated the resolution 247-184.

Spokesmen for Catholic institutions say they should not be forced to provide services they don’t believe in. “We want our moral conscience protected,” Lane said. Mere inconvenience does not justify forcing other people to abandon their principles, according to Bishop Donald Wuerl of Pittsburgh. “If someone feels burdened, is that a reason why I should be forced to violate my conscience?”

Changes in the air
A working group within the National Conference of Catholic Bishops has taken up the challenge of forming consciences regarding the issue of health care. As of September, the proposed changes in Ethical Directives included a new sentence that reads: “Catholic health-care institutions are not to provide direct sterilization, even based upon the principle of material cooperation.” The proposed amendments leave open the possibility that the principles governing material cooperation can be used to justify association with organizations involved in activities that are condemned by the Church. But the thoroughly revamped Appendix appears to eliminate many possible arrangements by excluding any direct participation in evil by Catholic institutions.

“Immediate material cooperation is wrong, with the possible exception of some rare cases that involve individuals and no corporate entities,” the new Appendix would state. It would end by warning that even in cases of possibly justifiable cooperation, “great care must be taken to avoid scandal.”

Bishop Wuerl, a member of the working group that drafted the proposed changes, explains that American bishops have become aware of problems with the current version. For his own diocese, Bishop Wuerl has published a “Protocol for Evaluating Catholic Health Care Collaborative Relationships,” which states: “A Catholic provider cannot own or manage an institution that by policy or practice engages in intrinsically immoral activities.” Though Bishop Wuerl declined to discuss the affairs of other dioceses, on its face his protocol would seem to forbid Seton’s lease of Brackenridge in Austin and Catholic Healthcare West’s management of 17 community hospitals.

Good decisions about business partnerships must be based on a clear understanding of the principles of cooperation, Bishop Wuerl says. “And personally, I think in a number of instances they’ve been misapplied,” he adds. “I think in too many of the instances what you were dealing with was not immediate material cooperation but formal cooperation, and that is not allowed.”

Bishop Wuerl says he has never been comfortable with the Ethical and Religious Directives’ current Appendix, which simply summarizes moral theologians’ pronouncements on the principles of cooperation with evil without offering guidelines for applying the principles. He would prefer something more concrete. “Bishops should present the teachings of the Church,” he says. “We would insist that there be considerable distance between the Catholic partner and the non-Catholic partner—moral distance —so nobody would get the idea that the Catholic institution was doing anything wrong.”

Field of battle?
Several observers tell Catholic World Report that the proposed changes in Ethical Directives have attracted considerable opposition. While Bishop Wuerl is optimistic that his fellow bishops will vote on some sort of changes to the document next June, others hope that the bishops will take more time. Father Magill, for instance, would like to see the bishops delay any action for at least 10 years, which he suggests would allow bishops and administrators an adequate opportunity to work out problems through trial and error.

Several people interviewed for this article charged that the Catholic Health Association is spearheading opposition to the changes in Ethical and Religious Directives. The association’s Father Michael Place flatly rejects that assertion. “The CHA has taken absolutely no position” on the changes, he says, adding that the association intends instead to help the bishops understand the issues involved.

Asked about the apparent contrast between what Bishop Wuerl has set forth for Pittsburgh and what Bishop McCarthy allowed in Austin, Father Place notes that diocesan bishops have the right to apply Church teachings in their own diocese as they think best. “The Catholic health-care situation in Texas is entirely different from what it is in Pittsburgh,” Place says. As for the possibility that cooperation with immoral acts could lead people to doubt the validity of the Church teaching, Father Place contends that bishops can avoid confusion by presenting their case to their people effectively. “I think the best way to minimize scandal is to tell people the truth, and explain how you’re being faithful to your values,” Father Place says. After that, lay people should trust their bishop’s decision and assent to it.

A positive witness
But is it enough merely to avoid giving scandal? Catholic institutions are supposed not only to avoid evil, but actually to do good, points out ethicist Germain Grisez. And Grisez maintains they cannot properly do either by associating with evil, even indirectly.

“The business of a Catholic institution like a hospital is precisely to bear witness to the faith,” says Grisez, a professor of Christian Ethics at Mount St. Mary’s Seminary in Emmitsburg, Maryland. “The business of a Catholic institution is trying to lead people out of sin, not just leaving them there.”

Grisez takes a hard line against any kind of cooperation with contraception. So it seems natural to ask him a practical question: What if refusing to cooperate with sterilization means Catholic hospitals have to go out of business?

“I think the answer to that is going out of business is not the worst thing in the world,” answers Grisez. He believes that the days of Catholic hospitals may be over. Dwindling religious orders, now too small to run hospitals by themselves, ought to think about directing their energies into clinics for poor people without health insurance or AIDS patients or old people, he says.

But if hospital administrators are determined to hang on, Father Magill worries they may take a different tack if they find they cannot survive on their own terms. Rather than abandon communities they have served for decades, Father Magill thinks, Catholic hospitals may simply give up their Catholic identity.

This is not a prospect Bishop Wuerl relishes. “It’s never desirable to have fewer Catholic institutions,” he says. “But isn’t the purpose of Catholic health care to present Catholic health care in the community?” To him, that means following Catholic moral teachings, both directly and in cooperative ventures: “How could they choose not to do that and still be a Catholic institution in the community?”