A week before Jesse Hammons’s surgery, he got an unexpected call from his doctor. The hospital had decided that under Catholic doctrine, Jesse’s gender dysphoria did not justify disrupting his body’s “functional integrity.” The hysterectomy he had planned was off. Jesse was shocked and devastated—all the more so because the hospital, University of Maryland St. Joseph, is part of the state medical system.
Hammons had encountered a government-religious hospital—an odd and constitutionally suspect hybrid where state function and religious adherence combine. While the University of Maryland Medical System—an arm of the state—had purchased St. Joseph a decade earlier, the hospital retained its Catholic designation from the Vatican. In the sales contract, the state promised to apply religious restrictions to patient care. Until recently, the hospital’s website described its mission as “guided by our Catholic heritage,” with values including “respect for all people as God’s loved children.” Employees were bound by religious rules overseen by the Catholic Church.
This merger of government and religion is not unique to UM St. Joseph. Other states now own religious institutions outright. The University of Alabama runs a string of Baptist hospitals in a “faith-based health system” with a mission of “witness[ing] to the love of God through Jesus Christ.” Sometimes, the state instead teams up with a religious partner, investing together in a hospital. For example, in 2018 the University of Michigan joined Catholic mega-system Trinity Health to operate a hospital “consistent with the teachings of the Roman Catholic Church.” More often still, cities and states hand over management of public hospitals to religiously affiliated health care systems or give them control of public health districts. In public medical schools, clinical staff and medical students must sometimes comply with teachings against abortion, contraception, fertility treatments, and LGBTQ-affirming care.
These government-religious hospitals didn’t arise overnight. They are the culmination of decades worth of consolidation along with the steady creep of religious doctrine across the health care industry. As religious hospitals gained market share, their commercial networks proliferated, spreading restrictions on patient care into purportedly secular and even public hospitals. Yet these limits remain obscure to patients. Across the country, American health care facilities often radically inhibit reproductive and sexual health care, even in the absence of explicit laws—like abortion bans—that restrict access to a full range of medical care.
Like many public universities and cities nationwide, the University of Maryland Medical System, where Hammons was denied care, would have found few options when it went looking for a partner. In many areas, a religious hospital dominates the market, with little competition.
But forty years ago, public hospitals were a mainstay of cities and rural counties. The standalone community hospital—nonprofit and offering some charitable care—was a typical feature of the American health care landscape. Patients, especially in metropolitan areas, usually had a range of options for hospital services.
Today, by contrast, enormous health care chains that link institutions across regions and state lines dominate the marketplace. 95 percent of metropolitan areas have highly concentrated hospital markets. Not one is considered competitive. More than half of the 1,800 public hospitals that were run by cities and counties in 1980 have shuttered or privatized. The vast majority of Americans have little or no choice when they need hospital care.
A series of political and economic choices in the 1980s launched us on this trajectory. Neoliberal policies favoring privatization over democratic institutions and austerity over social investment worked to the detriment of public hospitals. Nonprofit hospitals enthusiastically embraced financial considerations as the primary driver of decisions in the face of new developments in the market: the emergence of for-profit hospitals and pressure from the insurance industry’s move to managed care.
Economies of scale, it was thought, would bring down costs and improve the quality of medical care. Private hospitals rushed to consolidate. A 1986 survey reported that more than 40 percent of hospitals had merged or were considering a merger. The Reagan administration effectively paved the way for anticompetitive mergers by declaring a hands-off approach to antitrust enforcement.
As private hospitals strategically eliminated and reduced unprofitable service lines, these services then fell to public hospitals. Cost pressures also increased patient dumping, whereby private hospitals sent poor, uninsured, or medically demanding patients to public hospitals. Large operating deficits and preference for nongovernmental actors led even more cities and counties to close, sell, or substantially reduce the services of their public hospitals.
In the 1990s the number of hospitals fell nationwide. Federal and state antitrust enforcers suffered a series of losses in the courts. Nearly a thousand hospital mergers took place over the decade.
After its enactment in 2010 the Affordable Care Act fueled yet another frenzy of consolidation. Hospital systems joined to form mega-systems worth billions of dollars. These systems also moved toward vertical integration, gobbling up physician practices. By 2018 the majority of physicians were affiliated with a health system. The result was hospital (and health care) markets without much in the way of competition.
Today, hospitals that would deny care for religious reasons are often the only game in town. Nationwide, approximately 20 percent of hospitals have an official religious affiliation. They bear a variety of labels—Presbyterian, Jewish, Methodist. But dwarfing all others combined is Catholic health care. And over the last twenty years, the number of Catholic hospitals grew by 28 percent, even as the rest of the market shrank almost 14 percent. Today, of the country’s ten largest hospital systems, four boast a Catholic designation, and one in seven hospital beds are in a Catholic facility. Nearly 40 percent of women of reproductive age live in areas where Catholic hospitals have a high or dominant market share.
Tamesha Means was just eighteen weeks pregnant when her water broke, and she sought help from Mercy Health Muskegon, the only hospital in the Michigan county where she lived. In the following days, she returned three times—her symptoms escalating to severe pain, profuse bleeding, and a spiking fever. She was miscarrying. Each time, the hospital staff told her to go home, that everything would be okay. Catholic rules dictate that if there’s fetal cardiac activity, providers can’t terminate a pregnancy—unless and until the pregnant person’s life is at risk. And, in Means’s case, providers weren’t even willing to give her information. “Doctors there could have told me that my child had no chance of survival,” she wrote in an op-ed for The Guardian. “They could have told me that continuing the pregnancy at this point put my health and life in extreme danger. They could have completed the miscarriage and terminated the pregnancy.” Instead, she suffered “days of unnecessary pain, suffering, and infection” in going through labor and the delivery of a baby who died within hours.
In Catholic facilities (and their partners), every health care provider has to sign on to the Ethical and Religious Directives for Catholic Health Care Services, rules written by a committee of U.S. Catholic bishops, agreeing to withhold a wide range of common reproductive health services, including contraception, sterilization, abortion, and fertility treatments, as well as some end-of-life care. They must only inform patients of “morally legitimate” treatment options. So in some hospitals, when a patient presents with an ectopic pregnancy, a doctor may only offer a procedure that removes the fallopian tube (and damages future fertility), rather than treat it with methotrexate, a nonsurgical option that preserves the fallopian tube but is typically held to be prohibited under the Directives. In some Catholic hospitals, providers cannot give gender-affirming care to transgender patients.
Other religious affiliations also sometimes place religious teaching above the medical standard of care. Some Baptist systems disfavor or have policies against gender-affirming care. In the 90 Adventist hospitals and 350 affiliated provider organizations in the United States, abortion is strictly limited. As the Law, Religion, and Rights Project at Columbia Law School has uncovered, many Protestant hospitals in the South only permit abortions in (often ill-defined) circumstances that would protect the patient’s life or health or for particular fetal anomalies. Well before the Supreme Court overturned Roe v. Wade, the behemoth Baylor Scott & White system in Texas—which serves a population larger than that of Georgia—was among numerous systems with such exacting limits.
And so, even before Roe’s demise, pregnant women nationwide faced an uncertain and medically risky landscape for maternity care and abortion access. Emergency departments in Catholic hospitals across the country have long refused to care for pregnant women with ectopic pregnancies or undergoing miscarriages, even as they hemorrhaged or developed life-threatening infections.
“You go into labor and you don’t know there’s no option.” This stark warning from Nikol Chamberlain, a nurse who works for Centura Health, was prompted by her hospital’s decision to refuse to provide tubal ligations following labor and delivery. Centura Health, a health care system that claims both Adventist and Catholic identity, had banned sterilization—commonly done after delivery—via a “re-education” of staff about Catholic rules.
The hospital’s location—Durango, Colorado—puts patients in a bind. Durango does not have another maternity hospital. Some expecting mothers might drive to Denver, but “it’s an eight-hour drive…you have to have someone watch your kids…you have to recover and then drive back for eight hours.” What’s more likely is that patients will have to schedule and undergo a second procedure—complete with the health risks and costs attending an additional surgery—or that they will forgo the procedure entirely.
Patient choice is more theoretical than practically feasible even where there is some local competition. For one thing, simply knowing that a facility is religious doesn’t tell a patient what care they might receive. Religious institutions vary widely in their approach: procedures that are banned at a Catholic hospital may be permitted at a Baptist or Adventist hospital (and vice versa). There is substantial variance between hospitals even of the same faith affiliation. For example, although all Catholic hospitals are ostensibly bound by the same set of restrictive rules, in practice the stringency of their application depends on ad-hoc decision making by ethics committees, the interpretations of local bishops, and whether providers are willing and able to identify workarounds.
Moreover, the proliferation of religious restrictions through corporate transactions has sowed confusion. The average person entering Hoag Memorial Hospital Presbyterian in Newport Beach, California, Baptist Hospital of Nashville, Tennessee, or West Suburban Medical Center in Chicago, Illinois would assume they were non-Catholic. Yet, each of these facilities operated for some time under Catholic rules due to mergers, affiliations, or looser corporate ties.
Perhaps the savviest health care consumers might scour hospital websites. But even a comprehensive search of those sites would leave patients vulnerable: unsurprisingly, facilities are less than eager to advertise care restrictions in their marketing materials.
And most patients lack any awareness that religious restrictions could interfere with their medical care. When Americans seek care at a hospital, they expect a full array of medical care delivered in accordance with professional standards. They don’t expect religious dictates to interfere with medicine—not even at hospitals that maintain religious affiliations.
A patient in the state of Washington, a retired pilot and “tough guy,” suffered through the pain of a cancerous mass in his jaw. He knew his trusted oncologist couldn’t help him access life-ending medication under the state’s Death with Dignity Act. His doctor’s practice had recently been acquired by a Catholic-affiliated system. By the time the nearly eighty-year-old was referred to another provider, the pain had become too much. He shot himself in his backyard.
In Washington over 40 percent of hospitals and scores of clinics, doctors’ offices, and surgical centers abide by Catholic rules. And these religious limits on care are often imposed in secular hospitals, due to corporate affiliations and acquisitions. When a secular and a religious hospital merge, the secular hospital may be officially designated as Baptist, for example, or it may keep its non-Baptist identity. Looser affiliations like partnerships, management agreements, or leases also can result in system-wide religious restrictions. In these transactions, each health care corporation typically maintains its own identity. The religious partner has no ownership stake in the partnering facility, lessee, or joint venture. Yet, in states from New Hampshire to Florida, secular hospitals might agree to ban services like tubal ligations, abortions, and IVF to clear the way for deals with religious partners.
Public hospitals also have come to accept religious restrictions when they affiliate, however loosely, with a religious hospital. In Oregon and Washington, for example, public health districts have partnered with Catholic health care systems. The public pays for construction costs and uses property taxes to subsidize the hospital’s operations but receives care only when consistent with religious doctrine. In Louisiana, the sole community hospital for the Natchitoches region is owned by the government but managed by a religious system and thus denies patients abortions and tubal ligations. Today, the public hospital there has closed, but public medical education is limited by various religious rules. In Alabama, a Baptist health system took half ownership of a county’s regional medical center. Each of these arrangements defies the expectation that the government won’t own religious institutions or be subject to their control.
Perhaps more shocking still is the rise of “zombie religious hospitals”—formerly religious hospitals that maintain religious restrictions as a condition of contract long after they are sold to secular, for-profit, or governmental buyers. These hospitals further no religious mission, grant no role to religious orders, and have no religious ownership. The new owners of once-religiously affiliated facilities often have no objection to the restricted health services. They may even provide them at other facilities. But in a phenomenon that seems to date to the 1990s, sales agreements maintain a hospital’s religious identity after it is sold to a secular buyer. Religious restrictions often remain in force and limit patient care years after a facility has changed hands.
After the purchase of the six-hospital Caritas Christi system in Boston by private equity firm Cerberus Capital Management, the Wall Street Journal remarked, “Catholic nuns, meet your new owners: A three-headed dog from hell.” Yet as part of the deal with Caritas Christi Health Care, Cerberus promised to maintain not only compliance with religious rules but also official designation as Catholic. The religious institution—now for-profit and investor-owned—survived in zombie form, lacking a live connection to religion but contractually committed to religious identity.
These zombies populate states with relatively liberal policies toward abortion, contraception, and other reproductive health care. The world-renowned Mayo Clinic operated one of its hospitals in Rochester, Minnesota under religious restrictions for decades. In Chicago, the Sinai Health System—historically a Jewish health care provider—owns Holy Cross Hospital, subject to Church authority. In Maine, a secular buyer agreed to ensure that “faith-based care continue” and to abide by the “Adventist culture and value system” when it acquired Parkview Adventist Medical Center. For-profit Vanguard Health Systems has touted its operation of facilities with Baptist and Catholic identities. And, of course, the University of Maryland Medical System owns UM St. Joseph but continues its Catholic identity by contract.
One large empirical study found that when Catholic hospitals were sold to a non-Catholic buyer, the performance of tubal ligations—a procedure largely barred by the Catholic rules—did not increase, indicating that the same restrictive policies remained in place. By contrast, when a Catholic system purchased a formerly willing hospital, rates of tubal ligations plummeted.
Religious restrictions are not only enforced in hospital corridors but in physician offices, clinics, and ambulatory surgery centers. For example, after Ascension Health purchased the only hospital in Bartlesville, Oklahoma, every ob-gyn in the city but one risked losing their ability to prescribe contraceptives for birth control purposes—access that was only preserved due to public backlash. Likewise, when Catholic CHI Franciscan merged with secular Virginia Mason in 2021, the newly formed health system banned nontherapeutic abortions and aid-in-dying in three hundred health care facilities across western Washington.
The problem of religious domination in health care markets has no easy fix. It has roots in larger dilemmas in the political economy of U.S. health care—the neoliberal privileging of private business over government, unchecked corporate power, and (until recently) democratic indifference to reproductive health care. But federal agencies, states, cities, and citizens have tools to battle these larger problems and to begin to roll back the religious restrictions in our health care.
The most straightforward way would be direct regulation. A state might require, for example, that all hospitals with the capacity for labor and delivery also offer abortions and tubal ligations. A narrower option would specify emergency obligations on hospitals to deliver abortion care—making more precise the duties of emergency care where pregnancy complications are involved. Prompted by a woman’s near death after being denied treatment for a miscarriage by a Catholic hospital, the state of Washington now prevents health care entities from firing or disciplining any health care provider who disobeys a restriction that violates the standard of care, risks a patient’s life, or results in irreversible harm to a patient experiencing pregnancy complication. Such reforms, however, would be fiercely resisted by powerful health care systems and, if enacted, would likely prompt lawsuits alleging violation of religious liberty protections.
Others have called for more incremental reforms. They argue that hospital systems should, at minimum, disclose policies of refusal and be required to permit individual providers to give information and referrals for care. On this view, patients armed with information could find services in the health care market. Although we’re skeptical about what transparency can accomplish in many markets, it is clear that women like Tamesha Means could have benefited if nurses and doctors had told them about their risks and options—even if they could not deliver those services themselves.
A second category of reforms would harness the state’s role in ensuring market competition and availability of community health care. Much of the trouble with religious hospitals stems from their market power. One classic tool to mitigate such economic concentrations is antitrust law.
Federal and state regulators should institute more rigorous review of hospital transactions and block mergers and affiliations that threaten patient access to care. They should also police increasing vertical consolidation, whereby hospital systems acquire physician offices and other facilities. They should consider breaking up anticompetitive acquisitions that previous administrations permitted. On the federal level, the timing may be right for an antitrust strategy. In July 2021 President Biden issued a sweeping executive order designed to promote competition across the American economy and in hospital markets specifically. Seizing this “antitrust moment” might revive some measure of competition where it has been sorely lacking, not only dispersing concentrated economic power in health care but also supporting access to critical care.
In their review of mergers and other transactions, states can also take into account their potential impact on reproductive, LGBTQ-affirming, and end-of-life services. In some states, public officials have the authority to block health care transactions or to set conditions for their approval. In California, for example, charitable trust law requires the attorney general’s consent for any sale or transfer of a health care facility that is owned or operated by a nonprofit corporation. More ambitiously, Oregon recently passed the Equal Access to Care Act, which authorizes a board composed in part of residents and consumer advocates to conduct in-depth review of any transaction that affects essential services, including reproductive and maternal health care.
Where consolidation leads to the market dominance of religious hospitals, some kinds of services might be driven out entirely. When previously, a Catholic hospital might have competed with a Jewish or secular facility, a combined Catholic facility might mean a reduction in services sought by a religiously plural public. States might avert this fate by placing conditions on particular mergers, requiring a combined facility to continue previous levels of reproductive, gender-affirming, or end-of-life care. Or it might condition all hospital mergers on binding commitments to maintain those services.
Religiously dominant health care institutions stem in large part from political choices favoring privatization and austerity. But those political choices aren’t set in stone. Proponents of a more democratic politics might seek to expand the public provision of health care services. Local governments could set up genuinely public hospital facilities that deliver a baseline of care without regard to religious doctrine. States might repurpose their own facilities, which today are often dedicated to psychiatric care. The federal government might consider opening Veterans Affairs hospitals to the general public for services that are denied by religious hospitals. Lower-hanging fruit would be to mandate abortion at public hospitals or at public health clinics, as New Mexico’s governor recently did. Other public entities could also be harnessed to deliver care that would otherwise be religiously restricted: Massachusetts, for example, has mandated that its state universities provide medication abortion.
Another way to implement public provision of health care services is to create a hospital-within-a-hospital. This strategy might involve carving out a designated space within an existing facility where religious restrictions on care do not apply. Or it might involve governments creating entirely separate spaces that provide excluded care. Either way, if standalone public institutions are out of reach, these alternative arrangements might provide a second-best avenue to safeguard a limited realm of secular care.
Citizen activism and community mobilization can forestall or mitigate loss of patient care. Proposed hospital transactions present an opportunity for communities to engage with regulators and hospital administrators to ensure a health care system responsive to a diverse population. For example, when a Catholic and non-Catholic facility merged in Michigan, the local community of Battle Creek successfully pushed for the creation of a separate “condominium hospital” on the top floor that would offer the reproductive services precluded by Catholic religious directives. In rural California, local residents and advocates banded together to pressure a hospital to provide tubal ligations and family planning services. On a larger scale, persistent worries about religiously motivated discrimination prompted students and faculty at the University of California in 2021 to organize, protest, and successfully lobby for the adoption of new standards that denied the ability of Catholic hospitals to place religious restrictions on the UC doctors working in them.
Across the country, concentrations of economic, political, and religious power thwart delivery of medical care. In a religiously plural society, concerned with the freedom and equality of its citizens, this is an unacceptable state of affairs. Unfortunately, while reforms are desperately needed, there is no silver bullet—no single policy solution to what ails some of our most significant health care institutions. Nevertheless, with some creative thinking about the structure of health care markets and the larger political economy in which they operate, improvements are possible. If we can muster the political will to demand facilities that meet the medical needs of a diverse country, we can move toward a more just system of health care delivery. If not, then disasters will continue to befall American patients in the name of religion.
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