Rose Jade says patients' health-care options shouldn't be limited by directives from Catholic bishops.

by NICK BUDNICK
nbudnick@wweek.com

When George W. Bush opened an "Office of Faith-Based and Community Initiatives" inside the White House earlier this year, he touched off a national debate about the wisdom of mixing religion and government.

Here in Oregon, however, government providing services through religious-based groups is nothing new--nor is the controversy surrounding it.

For more than a year, a legal storm has been brewing on the Oregon coast, precipitated by Providence Health System's proposed takeover of a publicly funded hospital there.

The storm, which comes to a head next week, shows how church-and-state issues can affect Oregonians' day-to-day lives--and may do so increasingly in the future. Providence, overseen by the Catholic order of the Sisters of Providence, is a rapidly growing health chain and plans to serve one out of three Oregonians by 2007.

In January 2000, the Pacific Communities Health District proposed letting the Seattle-based Catholic hospital chain run its hospital in Newport, as well as five clinics.

Then Providence ran smack into Rose Jade.

Jade, a spunky Portland patent lawyer, got involved because she owns an apartment in Newport. The more she learned about the proposed deal, the more alarmed she became. And she's not alone. Catholic health-care chains have been a major player in the industry's merger mania for the past five years, and pro-choice and assisted-suicide activists have grown increasingly alarmed that religious affiliations are limiting citizens' access to medical services.

For patients of Catholic hospitals, says Jade, "You're living in America, but you're basically living in the Vatican." So she challenged the agreement in court, representing herself as plaintiff.

For the past year, Catholic health-care entities and women's choice groups have been watching the Lincoln County courtroom of Judge Robert Huckleberry. Coming to Jade's aid have been Portland lawyers Jane Paulson, Maureen Leonard and Art LaFrance, a professor at Lewis & Clark's Northwestern School of Law. They faced off with two high-powered Portland law firms: Tonkin Torp and Stoel Rives, representing Providence and the health district.

Jade's allies noted that the hospital district is funded by a local tax levy (through the Pacific Communities Health District). They argued that funneling that money to Providence would violate the constitutional wall between church and state.

The practical effect of the Providence takeover, they argued, would be restricted health care. All Catholic hospitals are governed by a set of rules called the Ethical and Religious Directives, formulated by the National Conference of Catholic Bishops. Those directives forbid any form of birth control--from vasectomies and tubal ligations to abortions, RU-486 and standard birth-control pills. The directives also ban physician-assisted suicide.

In his court testimony, Father John Tuohy, the head ethicist for Providence, acknowledged that all doctors and employees of the system must agree to obey those directives.

But he also conceded that there are some loopholes. First, the directives apply only to practices on Providence premises. In other words, Providence doctors can provide abortions or vasectomies in other clinics if they want to. In addition, he says, contraceptives could still be prescribed at Providence hospitals--because prescriptions are between the patient and the doctor. "We don't monitor those conversations," he said. "We couldn't do that without disrupting the patient-physician relationship."

In other words, Providence doctors can violate their employment agreement to obey the directives--as long as they don't tell the hospital.

So if this is true, what are people worried about?

Jim Kronenberg, associate executive director of the Oregon Medical Association, says that the spread of Catholic health care is mostly an issue in rural areas where the only hospitals are Catholic.

But even in Portland, where doctors and patients can choose between hospitals, the Catholic restrictions are an issue, say doctors interviewed by WW.

Dr. Jim Newhall says that patients' access to health-care choices relies on full information--and patients often are not aware that religious issues may affect their doctor's counsel. "Patients don't understand that," says Newhall, who performs abortions in Portland. "If you go to a hospital, you expect to be taken care of."

According to one Portland Providence doctor who spoke on condition of anonymity, Providence's "don't ask, don't tell" policy sometimes conflicts with the ethical requirement that doctors put patient first. For instance, he says, when it comes to physician-assisted suicide "you can't talk to patients about it if you work for the Sisters." At the same time, he says, "You've got to do what's right for the patient. I personally would never sacrifice that for anybody."

Doctors say patients' health-care options shouldn't depend on their doctors' willingness to violate the bishops' directives--by telling them, for instance, that they may want to get their tubes tied.

Dr. Michael Garland, a social ethics professor at OHSU, says the issue of whether patients are fully informed at Catholic facilities has come up before the Medicaid Advisory Committee of the Oregon Health Plan. "We asked that question," says Garland, who sits on the committee, "and the answer wasn't clear."

It was concerns such as these that led Jade to challenge the merger. But now she may face a victory that feels like a loss.

In January, after the trial took place but before Huckleberry could rule, Providence canceled the operating agreement and attempted to pull the case from court, saying that years of litigation would distract the chain from its mission.

Jade and other pro-choice activists think Providence just wants to avoid losing, and thereby dodge paying the other side's legal fees. "I think that Providence really wants to avoid a ruling on the merits," she says. "They cost us hundreds of thousands of dollars in attorneys' fees and expenses. Unless the court makes a ruling, it's going to all be a waste."

Her concern is that Providence is already working on a new operating agreement with the district that may raise the same concerns. On March 21, the two sides will once again argue before Huckleberry to decide the issue.

In the meantime, Jade views Bush's faith-based initiatives plan, which would direct government agencies to expand theirs partnerships with faith-based groups, with alarm. "It's a very slippery slope," she says. "But if we start going down this road, Providence is in the perfect position to reap the rewards."