Did Wisconsin Anti-Choice Lawmakers Accidentally Force Catholic Hospitals to Grant Admitting Privileges to Abortion Clinics?

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Analysis Law and Policy

Did Wisconsin Anti-Choice Lawmakers Accidentally Force Catholic Hospitals to Grant Admitting Privileges to Abortion Clinics?

Jessica Mason Pieklo

The legal battle over Wisconsin's admitting privileges law may be setting up a new fight involving religious hospitals.

Wisconsin is one of the states in the country where abortion access is most zealously under attack. But in anti-choice lawmakers’ zeal to try and regulate legal abortion out of existence in the state, did they accidentally force Catholic hospitals to grant admitting privileges to abortion providers?

The Wisconsin legislature introduced its admitting privileges law on June 4, 2013, and despite the fact that the law was opposed by all the state’s leading medical associations—including the Wisconsin Medical Society, the Wisconsin Association of Local Health Departments and Boards, the Wisconsin Academy of Family Physicians, the Wisconsin Hospital Association, and the Wisconsin Public Health Association—and the legislative record was devoid of any documentation of a medical need or purpose for such a regulation, the law passed. As quickly as the law passed, it was challenged and blocked by a federal court as likely unconstitutional.

But as the immediate, legal challenge to the constitutionality of the admitting privileges requirement plays out, another legal battle over the law has bubbled up. While area providers applied for admitting privileges to try and comply with the law, local Catholic hospitals affected by the admitting privileges requirement originally said they would not grant privileges to abortion providers. Those statements were then contradicted by Dr. Matthew Lee, a doctor on the credentials committee at the Wheaton Franciscan St. Joseph campus in Milwaukee. He told the court during arguments over whether the law should be blocked that he believed religiously affiliated hospitals in the state would be open to granting privileges to doctors who perform abortions. Lee’s statement, in turn, was almost immediately challenged by the chief medical officer for Wheaton Franciscan, who said her organization would not grant privileges to abortion providers, citing the hospital’s Catholic affiliation. According to the Milwaukee Journal Sentinel, when asked about the Wheaton Franciscan policy and its apparent inconsistencies with Lee’s affidavit, the hospital’s assistant general counsel, Matt Moran, said in a statement, “The medical staff and hospital board have discretion in making decisions on granting privileges and can consider the mission, values, and operational needs of the organization. Requiring certain professional, ethical, and character qualifications is recognized by the courts as valid and related to the operation of the hospital.”

Although religiously affiliated hospitals in the region have figured out publicly whether they would or would not grant admitting privileges to abortion providers, attorneys for the State of Wisconsin told the court any plan by the hospitals to deny privileges because of a Catholic anti-abortion stance would be in violation of federal law, which “provides that hospitals accepting federal funds may not discriminate against a physician because that physician has participated in or refused to participate in abortions.” That’s thanks to the Church Amendments, federal statutes enacted after Roe v. Wade that are designed to protect federally funded hospitals and doctors from being required to participate in abortion or sterilization procedures. But the Church Amendments also protect doctors who perform abortions, including in decisions about privileges. The law, in part, prohibits “discrimination in the extension of staff or other privileges to any physician or other health-care personnel, because he performed or assisted in the performance of a lawful sterilization procedure or abortion.” If doctors are ultimately denied admitting privileges and can prove they were not granted those privileges specifically because they perform abortions, the hospital systems could lose federal dollars in the form of research and public health grants.

Roe has collapsed and Texas is in chaos.

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Surely an institution like Wheaton Franciscan understands what’s at stake in violating the Church Amendments. It’s difficult to imagine anti-abortion lawmakers purposefully pushing abortion restrictions that would actually force Catholic hospitals to grant privileges to abortion providers. So what exactly is going on here?

All this confusion raises the obvious question of whether Wisconsin is being set up as a test case for just how much protection the Church Amendments offer providers or if this is really a question of lawmakers not knowing and not caring about the legislation they put forward. According to the Journal Sentinel, state Sen. Mary Lazich (R-New Berlin), who authored the Wisconsin bill, said she was not only unaware of the Church Amendments, she initially asked if they “were part of [the Affordable Care Act]” which suggests that Lazich had failed in her legislative due diligence. U.S. District Judge William Conley believed that was at least part of the story: “Here, there are no legislative findings. … The record contains no testimony from a physician or other medical expert about whether, how, or why the admitting privileges requirement would further women’s health. On the contrary, the record contains only physicians and medical organizations speaking against the bill.”

It’s one thing to find evidence of lawmakers not understanding the legislation they sponsor, but anti-choice legal strategy has rarely been that haphazard, even by today’s Tea Party standards. Importantly, the reach of the Church Amendments has largely been untested, especially in the context that pits the rights of an abortion provider against the discretion of a Catholic hospital’s decision-making process related to admitting privileges, and now may be just the time to mount a test case. The more than 60 lawsuits challenging the contraception mandate in the Affordable Care Act are designed to do one thing: radically redefine the nature of religious liberty rights to protect corporate interests. In other states that have also recently passed privileges requirements for abortion providers, religiously affiliated hospitals have denied the doctors’ applications by citing their failure to meet other standards, such as admitting a certain number of patients per year. In Wisconsin’s case, there’s already a public record that the hospitals are opposed to granting privileges to physicians who perform abortions, which suggests, at least in part, an unlawful motivation on the part of hospitals to deny privileges.

It’s an important question with real lives at stake. According to Law Students for Reproductive Justice, nearly 70 percent of religiously affiliated hospitals in the United States are Roman Catholic, which makes the Catholic health-care system the largest nonprofit provider of health care in the country. Under the Religious and Ethical Directives for Catholic Health Care Services, Catholic hospitals cannot, as directed by the church, provide contraception, sterilization, most infertility treatments, let alone abortions. Research conducted in 2010 revealed that one-fifth of physicians who practice in religious hospitals have faced a “clinical ethical conflict,” because hospital policies conflict with the physician’s medical judgment. Should the anti-discrimination provision of the Church Amendments is struck down in court, it won’t matter if Roe is overturned or not.