By Ann Carey
News of widespread sterilizations performed in Texas Catholic hospitals (see Page 3) highlights a four-decade tussle over the "Ethical and Religious Directives for Catholic Health Care Services" (ERDs) -- the national code governing Catholic health care facilities.
In addition to moral confusion and scandal, experts say the situation has provided ammunition to those who want to force Catholic medical institutions to provide immoral services.
The ERDs were first adopted by the U.S. bishops in 1971 and approved by the Vatican. They reflect the various Church teachings about the dignity of the human person and apply those teachings to how the person is to be treated in Catholic health care settings. The six-part code discusses the social, pastoral and spiritual responsibility of Catholic health care and the professional-patient relationship. However, the section that has received the most attention is the one on the beginning of life, particularly the directives that deal with sterilization.
Church teaching specifically prohibits "direct sterilization" -- a procedure such as tubal ligation -- to prevent future pregnancy. The Church does, of course, permit necessary medical procedures -- like removal of a cancerous uterus -- that have a side effect of causing sterility, and this is called "indirect sterilization."
This teaching has been reiterated over the years. In 1974, the U.S. bishops asked the Vatican's Congregation for the Doctrine of the Faith (CDF) if exceptions could be made for pastoral reasons. The CDF replied in a document called Responsum Quaecumque sterilizatio in 1975, which said direct sterilization could not be permitted, even when it was done to prevent health problems in a future pregnancy.
In 1993, the CDF issued another response to questions as to whether hysterectomy or tubal ligation were permitted in cases where a future pregnancy might be dangerous. "Responses to Questions Proposed Concerning 'Uterine Isolation' and Related Matters" again reiterated the Church teaching that direct sterilization is always "morally illicit."
The ERDs were further strengthened in 1994, with special attention given to the section on hospital mergers and acquisitions, a phenomenon that blossomed in the 1980s. When Catholic hospitals acquire or merge with non-Catholic hospitals, the new entity is required to abide by the ERDs. In this contraceptive society, there have been, and continue to be, frequent efforts to block mergers, mainly because the ERDs do not permit abortion, sterilization or contraception services in Catholic facilities.
To allow mergers to go forward, Catholic hospitals sometimes agreed to a "carve-out," or "hospital within a hospital," arrangement and permitted an outside group to rent space in the Catholic hospital to continue sterilization services. These arrangements were praised by Catholics for a Free Choice and the Guttmacher Institute (originally a division of Planned Parenthood) as "creative solutions" to merger issues.
However, the CDF has ruled that such arrangements are unacceptable. In Austin, Texas, Seton Healthcare Network -- part of Ascension Health System -- took over management of city-owned Brackenridge Hospital in 1995 and signed a 30-year lease that allowed sterilization and contraception services to continue to be provided in the building by an outside agency.
When some Texas Catholics appealed to the Vatican, the CDF told now-retired Austin Bishop John McCarthy that those services must stop "immediately and permanently." In a June 9, 1997, letter to Bishop McCarthy, then-CDF secretary Cardinal Tarcisio Bertone wrote that even though the personnel performing the sterilizations were not paid by the hospital, "direct sterilizations can never be part of the medical treatment provided to patients in a hospital which is under Catholic administration."
Because of existing lease agreements in that case, an arrangement was finally made where the city purchased and operates one floor of the hospital for the sterilizations. The Vatican agreed to this deal, but made it clear that this was not an acceptable model for Catholic hospitals in the future.
In a similar case, Catholics in Little Rock, Ark., objected when Arkansas Women's Health Center was allowed to lease space for sterilizations in St. Vincent's Doctors Hospital, a formerly secular hospital that had been purchased by St. Vincent Health System. Little Rock Bishop Andrew McDonald, now retired, consulted the CDF, which told him in 1999 that the arrangement was unacceptable, so he directed the hospital to terminate the lease.
When Pope John Paul II addressed the bishops of Texas, Arkansas and Oklahoma during their 1998 "ad limina" visit, he told them that "abortion, sterilization or euthanasia are always inadmissible" and prohibited at Catholic health care facilities. "As bishops," he said, "you must remind everyone involved -- hospital administrations and medical personnel -- that any failure to comply with this prohibition is both a grievous sin and a source of scandal."
To address this problem, the Vatican asked the U.S. bishops to revise the ERDs to clarify the situation. In a 2001 revision, the bishops added a paragraph specifically prohibiting Catholic facilities from engaging in "immediate material cooperation in actions that are intrinsically immoral, such as abortion, euthanasia, assisted suicide and direct sterilization." The bishops also dropped an appendix about principles governing cooperation, which had led ethicists to give bad advice to bishops in some merger agreements.
Nevertheless, many Catholics still misunderstand the difference between direct sterilization and indirect sterilization, especially when Catholic health care institutions allow tubal ligations and say they are indirect and thus permitted because it is "for the total health of the person." (See accompanying article, "Ongoing confusion.")
Franciscan Sister Renée Mirkes, director of the ethics division of the Pope Paul VI Center in Omaha, Neb., said that if tubal ligation were indirect sterilization, that would mean there would have to be some disease in the fallopian tube for which tying the tube is a therapy, but there is no such condition because "tying the tube kills the tube."
Sister Mirkes added that Catholic hospitals are under heavy pressure from doctors to allow sterilizations. Indeed, St. Elizabeth Hospital in Humboldt, Saskatchewan, in Canada, was handed over to the local government last year after doctors resigned in protest against the prohibition of sterilization, and public opinion supported the doctors.
Non-Catholic doctors often don't know or understand the Catholic teaching on sterilization, so they expect to do them in the Catholic hospitals where they practice, explained John Haas, president of the National Catholic Bioethics Center. And he agreed that many Catholics don't understand the teaching either.
Haas, a moral theologian who consults widely for bishops and Catholic health systems, believes that ignorance, rather than ill will, explains why the ERDs have been implemented so unevenly. He has even consulted on cases where the hospital protocols have incorrectly defined direct sterilizations as indirect, and therefore allowable, and some bishops have signed off on those protocols. However, he feels that many bishops are trying to correct those mistakes of the past.
Unfortunately, those mistakes also set precedents that may be used by unfriendly entities like MergerWatch, NARAL Pro-Choice America and Planned Parenthood to try to force Catholic health care to compromise its principles. And the current threat to conscience for individuals and institutions is "huge" right now, according to attorney Denise Burke, vice-president and legal director of Americans United for Life.
"A hospital has the right to follow its corporate conscience," Burke said. "In the case of Catholic hospitals, that's the ERDs and other guidance from the bishops and the Vatican. It makes it harder to make that argument when there's a handful of hospitals that are, in essence, doing their own thing and defying the corporate conscience."
Similarly, a Catholic Medical Association task force on the ERDs issued a report published in the May 2005 Linacre Quarterly, which concluded: "It will ... be difficult for the orthodox Catholic physician to follow what would appear to be a clear condemnation of contraceptive sterilization if the Catholic hospital were tolerating such sterilizations on their premises. This conflict could become a medico-legal as well as a conscientious problem. The problem is compounded by situations in which procedures are approved in one diocese and prohibited in another."
There's little disagreement that the U.S. bishops have a huge challenge ahead of them to teach and correctly implement the ethical standards that guide Catholic health care.
Ann Carey writes from Indiana.