Hospital Mergers: The Threat to Reproductive Health Services

Hospitals have always played an essential role in reproductive health care by providing family planning services, infertility treatment, prenatal care, obstetrical services, and emergency care for rape victims. Although only seven percent of all abortions in the United States are performed in hospitals, they are often the most serious and complicated abortions, including those performed because a woman’s life or health is in danger or in later stages of pregnancy, when severe fetal anomalies are first detected. Many of these procedures could not be performed safely in any other facility. Moreover, the freestanding clinics that perform the majority of abortions are required by law in most states and by professional standards to be affiliated with local hospitals so that they can transfer a patient to a nearby full-service hospital in the event that complications, such as hemorrhaging or problems with anesthesia, arise. Some women hospitalized for childbirth also plan to have sterilizations, because of the convenience and cost-efficiency of undergoing the two procedures in a single stay. Thus, a hospital’s decision to jettison reproductive services can deprive thousands of women of vitally needed health care.

The Reproductive Freedom Project is working with ACLU affiliates and reproductive rights activists throughout the country to help them develop the strategies and resources necessary to address the threat that mergers pose to reproductive health services.

Why Hospital Mergers Result in the Elimination of Reproductive Health Services

Motivated by the need to remain competitive in a fast-changing health care market, many nonsectarian hospitals have recently been merging with religiously controlled hospitals. As a condition of the merger, religiously controlled hospitals have often demanded that nonsectarian hospitals observe religious prohibitions against providing certain reproductive health services. The most publicized and significant prohibitions are found in the Ethical and Religious Directives for Catholic Health Care Services. The Directives bar Catholic health care facilities from providing abortions, elective sterilizations, contraceptive services and supplies, most forms of assisted reproduction, comprehensive AIDS prevention and condom distribution, and “morning-after” pills (which prevent implantation of a fertilized egg) for rape victims. In recent years, American Bishops have been pushed to enforce these doctrinal restrictions, and even hospitals that disregarded some directives in the past are finding themselves subject to tighter control by the Bishops.

Although the most common transaction that causes the elimination of reproductive services is a merger between a Catholic and a non-Catholic hospital, the loss of services can also result from mergers and affiliations involving other denominations (or even nonsectarian hospitals fearful of controversy). For example, when Columbia/HCA Healthcare Corporation, the nation’s largest hospital company, proposed a joint venture this year with Georgia Baptist Medical Center, which is owned by the Georgia Baptist Convention, Columbia agreed that its 18 hospitals and other medical facilities in Georgia, and the physicians employed there, would not perform elective abortions if the transaction were approved. (Ultimately, the two hospitals broke off negotiations.) Columbia is participating in mergers all over the country, and its willingness to agree to such restrictive conditions, imposed by Baptists as well as Catholics, is a recipe for disaster.

The Harmful Impact on Patients

In an attempt to justify their failure to provide services otherwise required by law, religiously controlled institutions often invoke statutory “conscience clauses” that allow entire institutions to claim religious or moral objections to offering specific services. The individual religious and conscientious choices of patients concerning their medical care are thus subordinated to the institutional “conscience” of hospitals. Federal, state, and local governments facilitate this denial of essential health care services by granting tax-exempt status to religiously controlled hospitals.

Patients at religiously controlled hospitals often have no idea that they may be denied needed health services. Emergency patients or others who request prohibited procedures face physical and psychological risks. Catholics for a Free Choice, which has done much of the groundbreaking research on this subject, has documented a number of these cases. In one instance, a woman in Oregon went to a Catholic hospital to give birth and requested that she be sterilized after the delivery. Doctors did not perform the requested procedure, but failed to inform her that it had not been performed. Believing she had been sterilized, the woman later faced an unwanted pregnancy.

Low-income women and women in rural areas with few choices in medical care are the most vulnerable. For example, in 1992, 14 Catholic hospitals in the Chicago area denied 1,004 rape victims access to the morning-after pill. Of these 1,004 rape victims, 45 percent were low-income women seeking services in Catholic hospitals in poor and minority communities. Women who live in rural communities frequently have little choice but to go to religiously controlled institutions that are the sole providers of hospital services in their area. Even in urban settings, difficulties with transportation and child care often limit low-income women to one nearby clinic or hospital, which may be religiously controlled.

How to Intervene to Protect Reproductive Health Services

The Reproductive Freedom Project has been working with ACLU affiliates and activists across the nation to alert the public to the threats that mergers pose for reproductive services. We offer several case studies to highlight the tactics that have met with some success in particular locales:

Maine – Sally Sutton, Executive Director of the Maine Civil Liberties Union (MCLU) reports: “Intensive lobbying of a hospital’s board of directors was the key factor for us in stopping a dangerous merger.” In 1993, merger negotiations began among three Portland hospitals: Maine Medical Center, the state’s largest teaching hospital which provided contraceptive, abortion, and sterilization services, as well as abortion training for medical residents; Brighton Medical Center, an osteopathic hospital that provided contraceptive services and a small number of abortions; and Mercy Hospital, a Catholic facility that did not provide any of the reproductive health services prohibited by the Directives.

The MCLU and its partners in the Maine Choice Coalition met with the CEO of Maine Medical Center to determine what impact the merger would have on the availability of reproductive services. When they learned that this question was being glossed over in the merger negotiations, the coalition members raised the subject with the press and the public and lobbied the Maine Medical Center board of directors to address the matter. Physicians from Maine Medical Center assisted with the lobbying. Within a week after the stories hit the press, Mercy Hospital withdrew from the negotiations. Maine Medical Center and Brighton Medical Center are proceeding with their plans to merge, but they no longer are constrained to conform to religious doctrine.

Ohio – In the fall of 1994, the ACLU of Ohio and the Reproductive Freedom Project learned of a proposed merger between Health Cleveland System and the Sisters of Charity of St. Augustine Health System (CSA). Ohio law required that hospitals undergoing a merger obtain a “certificate of need” from the Department of Health. Whether or not the Department would grant the certificate hinged in part on the hospitals’ ability to meet the health needs of the communities they served. Health Cleveland and CSA sought an exemption to the certificate of need, based on their claim that no services would change as a result of the merger. The ACLU of Ohio, in consultation with the Project, wrote to the Department of Health, requesting that it deny the exemption because existing services offered by the Health Cleveland hospitals — contraceptive counseling, artificial fertilization, and sterilization — were inconsistent with the Catholic Directives and would likely be eliminated. Before a reply came from the Department of Health, the merger plans fell apart. Had this merger been implemented, no hospital west of Cleveland for 50 miles would have been able to provide comprehensive obstetrical and gynecological care.

In another merger, between Lorain Community Hospital and St. Joseph Regional Hospital, the exemption had already been granted when the ACLU of Ohio and the Project became involved. This merger resulted in the termination of elective sterilization services, and perhaps other reproductive health services as well, at Lorain Community Hospital. The ACLU of Ohio vigorously protested the reduction in services. Christine Link, Executive Director of the ACLU of Ohio, said: “If only we had known of the merger earlier, we would have had a good chance of stopping it in this rural area where everyone knows everyone.” Although the Department of Health declined a request by the ACLU to rescind the exemption, the affiliate did succeed in educating the public and the press about the harm done. A columnist for the Elyria Chronicle-Telegram urged: “As the Vatican tries to undermine reproductive freedom under the guise of health care, we should wish the ACLU well in its fight.” The ACLU of Ohio is keeping the pressure on by getting its members to write the hospital’s CEO and board members asking them to restore the sterilization services.

Massachusetts – The Civil Liberties Union of Massachusetts (CLUM) and the Reproductive Freedom Project learned earlier this year of a proposed takeover of Holyoke Hospital by Sisters of Providence Health Systems. The takeover would have required Holyoke Hospital to adhere to the Catholic Directives, meaning that it could no longer perform abortions or elective sterilizations. CLUM attorney Sarah Wunsch, in consultation with the Project, wrote to the Department of Public Health, requesting that it disallow the takeover. Her letter, reprinted here in full, is a useful model for other organizations and activists:

Dear _____:

I am writing on behalf of the Civil Liberties Union of Massachusetts, the Abortion Access Project, and the Coalition for Choice pursuant to 105 CMR 100.601(D). These groups have objections to the application by Holyoke Hospital for a determination of need in regard to its proposed change to give ownership of the hospital to Sisters of Providence Health Systems, Inc. (SPHS).

The Access Project, which was founded in 1992 by the Reproductive Rights Network, seeks to address the problems caused by the critical shortage of abortion services and abortion training programs in Massachusetts and nationwide. The Coalition for Choice is comprised of sixty organizations statewide that support the fundamental right to reproductive freedom, including but not limited to abortion rights for women and girls and the universal right to and availability of birth control and reproductive health care for all. The Civil Liberties Union of Massachusetts is the state affiliate of the American Civil Liberties Union and it has long worked to defend the right of all women to obtain abortions, birth control, and the full range of reproductive health services in order to exercise the fundamental constitutional right to control over one’s body and to make decisions about childbearing and sexual activity. In areas where these services are unavailable, many people, especially those who are poor, will be unable to exercise their right to make meaningful decisions in these important areas.

Because the proposed takeover of Holyoke Hospital by Sisters of Providence Health Systems will have a significant impact on access to these important services, we ask that the application for a determination of need be closely scrutinized and that it be rejected for failure to comply with DPH regulations on such applications.1

The Relevant Legal Requirements

Holyoke Hospital has submitted an application under G.L. ch. 111, ¤ 51 and 105 C.M.R. ¤ 100.600-.603 which require a determination of need before a license may be issued for a hospital in which there has been a change in ownership. Under these regulations, the Department of Public Health is required to determine if there is need for such a facility at the designated location. In order for DPH to make this determination:

• Section 100.601(E)(3) requires an application to contain a copy of the agreement setting forth all the terms of the proposed transfer of ownership;
• Section 100.601(E)(5) requires a description of any changes in the services of the hospital contemplated as a result of the proposed transfer;
• Section 100.601(E)(7) requires documentation sufficient to demonstrate the compliance with the standards set forth in 105 CMR 100.602;
• Section 100.602(B) requires evidence that consultation has taken place with the Department of Public Welfare, prior to submission of the application, regarding access problems of Medicaid recipients to medical services in the facility’s primary service area.

Holyoke Hospital’s application for a determination of need does not meet any of the above requirements and should be rejected on that basis.

Inadequacy of Application

First, we question the accuracy of the application’s statement that “[n]o change in services of the Applicant is contemplated at present as a result of the proposed transfer.” Application at 8. In Exhibit A to the Application, the Memorandum of Understanding between Sisters of Providence Health System and Holyoke-Chicopee Area Health Resources (which currently owns Holyoke Hospital), it is stated at page 6 that a “written plan for the reallocation of services shall be signed . . . and shall be incorporated in and become a part of this Memorandum of Understanding . . . .”

The application materials made available at DPH for public review do not contain a written plan for reallocation of services and thus the statement that no change in services is contemplated cannot be evaluated. The application is simply incomplete without this written plan which is supposed to be a part of the terms for transfer of ownership.

Second, the statement that no change in services is contemplated is at odds with the Application itself since Appendix A at page 7 specifically states:

. . . [T]he activities of Holyoke and the other HCAHR Affiliates will at all times be conducted in a manner which conforms to the Ethical and Religious Directives for Catholic Health Care Services as may from time to time be approved by the National Conference of Catholic Bishops. Holyoke will no longer perform abortions. Holyoke may perform sterilization procedures only when determined to be medically necessary. Holyoke may continue to provide family planning education.

This provision explicitly prohibits certain lawful accepted medical procedures from being performed at Holyoke Hospital. Apparently abortions are banned even if necessary to save the life or preserve the health of the woman. In addition, the continuation of “family planning education” does not explain whether contraceptives themselves may be dispensed or the content of the permissible [family planning] education.

Furthermore, the vague reference to the Ethical and Religious Directives for Catholic Health Care Services provides no guidance as to other procedures and information (in addition to abortion and elective sterilization) which may no longer be provided at Holyoke Hospital if the change of ownership is approved. These Directives should be part of the application since all terms of the proposed transfer are required to be set forth in the Application for a Determination of Need.2

Without submission of these Directives, it is impossible to evaluate whether other services will be curtailed. For example,

• will Holyoke be able to dispense condoms for the prevention of AIDS transmission;
• will Holyoke be able to dispense all forms of contraceptives for family planning purposes;
• will Holyoke be able to provide fertility services for people desiring to have a child;
• will Holyoke be permitted to dispense the “morning-after” pill for women who desire it because they are the victims of rape or incest or for any other reason.

The Memorandum of Understanding, Appendix A at page 7, is also vague in regard to the statement that “the parties recognize that they do not control the private practices of their respective medical staffs.” The meaning of “private practices” needs to be clarified to determine if there will be a reduction of services provided at Holyoke Hospital itself.

Third, the Application does not meet the requirements of ¤ 100.602(B) that evidence be provided of consultation with the Department of Public Welfare. In this regard, the Application as contained in the DPH file for public review contains only a letter from the president of Holyoke Hospital to the Director of Benefits Services of DPW requesting consultation. See Exhibit B to Application for Determination of Need. The letter, dated January 25, 1995, asks for consultation within one week, but there is no evidence of any consultation taking place, nor any findings by DPW that there are no problems of access to medical services in the primary service area of Holyoke. A letter asking for consultation does not in itself constitute “consultation.” Since abortions and other reproductive health services are covered by Medicaid in Massachusetts, consultation with DPW on problems of access by Medicaid recipients in the Holyoke area is an important requirement.

Policy Considerations and No Showing of Need

The Application for Determination of Need asserts that the transfer of ownership proposal is consistent with the state health plan for 1983-1990 in part because it will serve the purpose of “`more attention to the prevention of disease . . . ,'” and “`wider access to primary health care.'” Application at 5. In fact, the proposed change of ownership may well hinder services that are aimed at preventing disease, e.g., AIDS, one of the major threats to public health in the Commonwealth, and will restrict access to primary reproductive health care.

The Application also asserts that the proposal furthers national health priorities by promoting “`greater efficiency in the health care delivery system.'” Application at 6. In fact, with the restrictions on sterilizations, fertility services, abortion, and contraceptive services at Holyoke Hospital, patients there will have to go elsewhere for these important services. Efficiency is simply not served when a woman who has given birth at Holyoke Hospital and wishes to have tubal ligation is forced to have that procedure elsewhere and at another time; efficiency is not promoted when a woman who is treated for rape is forced to go to another health care facility in order to obtain “morning-after” pills; efficiency is not promoted when a pregnant woman being treated at Holyoke Hospital for an emergency is sent elsewhere for an abortion to be performed to save her life or health. And obviously, even more is at stake than efficiency.

For low-income residents of Holyoke who have relied on Holyoke Hospital for health care services, there is nothing efficient about being unable to receive the full range of accepted, standard reproductive health care services if the change of ownership is approved. Holyoke is not a wealthy city; many residents will lack the resources — economic, physical, or emotional — to travel to Springfield or elsewhere to obtain basic medical and hospital care. Many will not know that the services provided at Holyoke Hospital are limited and that they are not being given the information and care they might receive elsewhere.

Finally, there has been no showing of need for a second hospital in Holyoke which provides health care subject to the same rules governing Providence Hospital, the other hospital located in Holyoke which is currently operated by the Sisters of Providence Health System.

For the foregoing reasons, we request that the Department of Public Health reject the Application of Holyoke Hospital for a determination of need for a change of ownership.

Sincerely,

Sarah Wunsch

1. These comments are based on a review of application materials contained in the files of the Department of Public Health and made available to the public for comment.

2. The agreement provides that the Ethical and Religious Directives for Catholic Health Care Services may be changed by the National Conference of Catholic Bishops. Thus, Holyoke Hospital is agreeing to abide by changes of which it has no current awareness that may affect services provided at the hospital.

Although the Department of Public Health declined our request that it reject the hospital’s application, the takeover never took place because Holyoke Hospital backed out of the deal.

There is no single “best” model for intervention. The laws and administrative procedures governing mergers differ from state to state. Depending on the situation, advocacy, public education, litigation, or a combination of them, may be the most effective tactic. Most important is attention to the politics and law governing the planned merger. The trend toward deregulation is rapidly changing the context in which health care institutions operate. The “certificate of need” requirement mentioned in the Ohio case study has now been eliminated in Ohio and elsewhere; only about one third of the states presently have such requirements. To date, one lawsuit has been filed to challenge a merger, Amelia E. v. Public Health Council. Represented by the Center for Reproductive Law and Policy, two individual women, Family Planning Advocates of New York, and two Planned Parenthood affiliates have sued the State over the conditional certificate of need that permitted the merger of Leonard Hospital and St. Mary’s Hospital in Troy, New York. This transaction resulted in the elimination of family planning and sterilization services at Leonard’s facilities, including three primary care clinics. The plaintiffs argue that the Department of Health and its Public Health Council violated state public health laws and regulations and the state constitution by failing to give adequate consideration to the “public need” and the health of state residents, especially low- income women, in the certificate of need process. Plaintiffs also contend that the merger violates New York and federal laws that require hospitals to make direct medical referrals for family planning, sterilization, and abortion services. At the urging of the trial judge, the parties are attempting to reach a settlement.

Action Steps to Preserve Reproductive Health Services

Check frequently in the local press and with the public relations offices of your local hospitals to see if any mergers, affiliations, or joint ventures are under consideration. It is crucial to intervene as soon as possible when you learn of the proposed transaction. Here are some steps you can take:

• Contact the ACLU Reproductive Freedom Project to obtain technical assistance and resource materials.
• Find out which reproductive health services would be banned by a religiously controlled hospital. Clarify the definition and scope of a “prohibited” service, such as abortion. (In the Catholic Directives, for example, the morning-after pill is considered an “abortifacient procedure.”)
• Request a meeting with the CEO of the hospital where services are threatened. Learn specifically which reproductive services are currently offered and whether they will be maintained at the same level, curtailed, or eliminated altogether if the merger takes place.
• Contact all local pro-choice organizations and other potential allies (e.g., medical organizations) so that you can work collectively to address the problem. A fight to retain reproductive health services requires both organizational resources and grassroots activism.
• Bring the merger discussions into the public spotlight. Encourage the press to cover the potential merger and to investigate whether reproductive services will be eliminated. As your organizing intensifies, send press releases, copies of correspondence with hospital and state officials, and other supporting documentation to reporters. Write letters-to-the-editor, arrange editorial board meetings, and place advertisements in the local press to present your views.
• Find out what internal procedures govern the hospital’s decision to merge. Determine who has the power to authorize the merger, and write to them setting forth your objections. Organize a letter-writing campaign, with participation from physicians affiliated with the hospital, other health professionals, community and religious leaders, attorneys, and other community members.
• Ascertain your state’s laws, regulations, and administrative processes relating to a hospital’s change of ownership and/or change in services. The state department of health is likely to have oversight over certain aspects of hospital mergers, and the attorney general’s office and legislature should be contacted about possible antitrust and other economic concerns. Send certified letters to appropriate authorities detailing objections to the merger and asking them to disallow it. Attend public hearings and explain what harm the merger will cause.
• Organize demonstrations to express community indignation at the threatened loss of services.

Watching Over Your Community

We are witnessing a major transformation of American health care. Religiously affiliated networks now may include everything from laboratory facilities to outpatient clinics, from insurance companies to individual doctors’ practices. As the spread of managed care combines with the growth of religiously controlled systems to limit Americans’ options in their choice of health care providers, we will have to be vigilant and aggressive if we are to ensure the availability of reproductive health services.

It only takes one concerned, energized person to make the difference. One such activist, Nanci Clinch, in consultation with the Reproductive Freedom Project and other pro-choice organizations, organized opposition to an affiliation in Neva