Conscience and Catholic Health Care

Catholic health care in this country has long had a conflicted relationship with the health-care system at large. Tentative steps toward compromise have been stalled by post-Dobbs changes in abortion access and continued fights over transgender care. Most recently, as part of an ongoing effort to realign federal regulations with the Supreme Court’s 2020 decision that discrimination against transgender people is a form of sex discrimination, the Biden administration proposed a new rule to expand nondiscrimination protections in health care for transgender people. The U.S. Conference of Catholic Bishops opposes it.

The bishops believe that such rules violate the Ethical and Religious Directives for Catholic Health Care Services (ERDs), which lay out “a theological basis for the Catholic health care ministry.” Their position hinges on two arguments: (1) Catholic opposition to performing certain procedures is morally justified because the procedures do not constitute health care, and the refusal to perform them is not discriminatory; and (2) even if one disagrees with Catholic opposition to these procedures, forcing Catholic hospitals and medical professionals to perform them and thus violate their consciences should be opposed because it would pose a danger to conscience rights for all.

However, there are problems with this approach, which is unlikely to withstand the combined pressures of weakening Catholic political power, rising political and cultural polarization, and growing difficulty in accessing health care of all kinds, especially the kind not permitted under ERDs. Catholic health care thus faces a challenging future. Those who want Catholic institutions to remain substantively Catholic and to provide medical care within the constraints of Catholic medical ethics must articulate a more robust definition of pluralism and conscience rights. Here are four considerations for articulating that vision.

First, some Catholic health-care policies do discriminate against transgender people. Many in Catholic health care argue that criticism over supposed discrimination against transgender patients is misplaced: Catholic hospitals will not perform certain procedures for anyone of any sex or gender.

That’s certainly true of some procedures, like vaginoplasties or tubal ligations. But the U.S. Health and Human Services anti-discrimination regulations are not referring to those. Doctors can choose the focus of their practice, and no law is going to force them to perform a procedure they don’t have the skills and experience to perform. Instead, what is explicitly mentioned are hysterectomies, which Catholic hospitals can and do perform, in line with the Catholic ERDs. It’s not true that Catholic hospitals decline to perform this specific procedure for everyone and for every reason. They perform this procedure for everyone with every medical diagnosis except for gender dysphoria. And this is the core of the disagreement.

The only reason to perform a hysterectomy on a cisgender woman with endometriosis but not on a transgender man with gender dysphoria is if one has decided that gender dysphoria—a medical condition recognized in the DSM-5 and covered by insurance—is different from other medical conditions. That is a permissible distinction to draw in Catholic ethics. But legally, treating some diagnoses recognized by the broader medical community differently from others based on the gender associated with those diagnoses is the very definition of sex discrimination. “We wouldn’t perform that procedure for anyone with gender dysphoria” falls a little flat as a defense when the only people with that diagnosis are, by definition, transgender. Legally and logically, Catholic hospitals’ refusal to perform these hysterectomies discriminates against transgender people.

Does this mean that Catholic practitioners and providers should be forced to violate their consciences and sincere religious beliefs? No. But it means Catholic hospitals are going to need an affirmative carve-out from nondiscrimination law. They need to convince lawmakers, and the voting public, that Catholic hospitals deserve an exception. It’s no longer good enough, if it ever was, to argue that Catholic hospitals don’t discriminate. Instead, Catholic hospitals need to argue that allowing them to remain substantively Catholic is good for American pluralism—and, crucially, that Catholic conscience rights don’t have to interfere with anybody else’s rights.

Second, not all consciences are equally protected in health care. If the best defense of Catholic health care is conscience rights, Catholics must answer: Whose conscience? Patients, institutional providers, and individual providers can all be said to have one, and Catholic social teaching speaks powerfully in favor of religious liberty and freedom of conscience. But Catholic application of that principle can feel self-interested, as though it is only concerned with the kinds of restrictions that bear on Catholic consciences per Catholic theology. Catholic advocacy for conscience rights in health care has resulted only in concern with the kind of positive coercion that is the focus of Catholic moral teaching (the need not to participate in evil) while being uninterested in protecting others, especially religious minorities, who understand religious liberty as being more about the right to do things that are ethically mandatory.

A conscience argument that will win in the public sphere has to be more pluralistic than that. Americans are unlikely to accept the peculiarly Catholic idea that it’s worse to be forced to do something wrong than it is to be forcibly restrained from doing something you believe to be right and necessary.

Catholic employees and medical students at non-Catholic hospitals are protected under federal law. They cannot be forced to perform abortions, sterilizations, euthanasia, or certain contraceptive procedures that contradict Catholic teaching, nor can they be punished for their refusal to do so. The Church lobbied for that. But there’s no corresponding protection for employees at Catholic hospitals whose conscience conflicts with that of their bosses.

For example, the University of California has several partnerships with Catholic hospitals, under which state employees and students at state medical schools spend part of their time under the state’s supervision and on the state’s payroll, but under the Church’s roof and governed by the Church’s rules. This has prompted an ongoing debate within California, driven by medical professors who feel that this arrangement forces them to practice medicine in a way that they consider unethical and contrary to their values. Under the Church’s definition, those doctors’ conscience rights are not being violated because they are not being forced to do something they see as unethical. But the doctors, in their own understanding of and relationship to their consciences, experience the relationship as a violation of their ethical autonomy.

The state briefly considered a policy that would allow state-affiliated medical providers to perform procedures forbidden by the ERDs inside Catholic facilities if, and only if, delaying treatment until the patient could be moved to another facility would be detrimental to their health. The Catholic hospitals pushed back and said that this policy would force them to cancel their university partnerships, with the result that tens of thousands of mostly low-income patients would lose access to esteemed University of California specialists.

Conscience always plays a role in the provision of medical care. No hospital or medical association allows every doctor to perform every procedure their conscience may compel. Very few doctors are comfortable performing every legal procedure a patient may demand of them. And medical providers are almost always prevented from providing even life-saving care to an adult patient if the patient’s own conscience directs otherwise. The question is not whether conscience can be a limiting factor in health care but how to balance all the consciences at play. A basic starting principle is clear: A person who believes only in conscience rights for people who agree with them does not, by definition, believe in conscience rights. Conversations about conscience are fundamentally conversations about compromise.

Convincing the public that Catholic invocations of pluralism and conscience rights are sincere means considering whether any compromise to accommodate the consciences of health-care workers who disagree with Catholic hospitals is possible. Cooperation with evil is a serious matter, and if Catholic hospitals and moral theologians truly believe that no compromise is permissible, secular actors will have to respect that. But Catholics should not be surprised or offended if those secular actors come to the same conclusion.

The state of California ultimately backed down in its dispute with Catholic health-care partners. Next time, it might not. California voters may someday decide—in a world where doctors who provide transition-related procedures face increasing violence and threats—that it’s immoral to spend taxpayer dollars supporting hospitals that won’t employ those doctors. Catholics who insist that compromise is impossible do not have standing to complain about that choice. If Catholics present conscience rights as an all-or-nothing, us-versus-them matter, they shouldn’t be surprised if the response is “nothing” and “them.”

Third, without better access to health care, patients have no conscience rights of their own. Health care should always focus on patients. The best defenses of conscience rights for providers should, too: it’s important for patients to be able to choose doctors who align with their values. If a patient wants a procedure that a Catholic hospital can’t provide, that patient has the freedom to go somewhere else. But providers who are forced out by laws that don’t respect their consciences have no immediate recourse to other livelihoods.

However, this articulation of compromise assumes a fully functional, expansive, and affordable health-care system. We don’t have one. We have a system that makes it very hard to just “go to another doctor.” Somewhere between one-third and 45 percent of young adults have no primary-care physician. That’s not just Millennial fickleness and laziness. Accessing a PCP is hard. I have had five different insurance plans in the seven years since graduating from college. With each new plan, I need to spend hours on the phone finding a physician who accepts my insurance, who is accepting new patients, whose office is accessible to my home or work, and who can offer me an appointment that is neither months in the future nor conflicts with an essential obligation—if I ever find one at all. I’ve never felt able to choose my PCP based on other factors that might be important to me, like gender or area of expertise.

The problem is even more pronounced in rural areas and for patients who need specialty care. Nearly 15 percent of plans for sale on the federal marketplace have no in-network providers at all in key specialties like oncology and endocrinology. Many contain fewer than five providers within a radius of 100 miles of the most populous city in the network—100 miles! Some 16 percent of Americans live more than thirty miles from their nearest hospital, and around five hundred hospitals nationally receive special funding as the sole hospital in their communities.

More than 6.2 million people—3 percent of U.S. adults—reported having visited an out-of-network provider against their will within the last year because they were experiencing a medical emergency. This number was higher among lower-income adults, both because they more frequently utilized emergency medical care and because lower-cost insurance tends to have fewer in-network providers.

Catholic hospitals fill crucial gaps in this inadequate health-care system. In a time of unprecedented hospital closures, rural Catholic hospitals have been expanding. And Catholic hospitals based in urban areas are more likely than their competitors to accept patients on Medicaid. This is an incredible and essential service. But it means Catholic hospitals’ patients are quite simply less likely to have chosen to be there. They have nowhere else to go.

Effectively contesting regulations that infringe on conscience requires expending just as much energy, time, and money contesting the conditions that create them. The HHS explained that the proposed anti-discrimination rule was needed because, “[a]s a practical matter…many patients and their families may have little or no choice about where to seek care.” If nobody is ever forced to choose a Catholic hospital when they’d rather be elsewhere, much of the justification for the rule and other policies like it disappears.

Health-care access isn’t just an additional social-justice issue that the Church should be concerned with in its own way. It’s also a religious-liberty issue.

Finally, for now, the key to compromise is transparency. Catholics, like all people, tend to overestimate how much other people are thinking about them. Catholic hospitals assume that patients have a general idea about procedures they are barred from performing. But this is a flawed assumption

It’s not necessarily that patients don’t know what the Catholic Church teaches. Sometimes they just have different definitions of abortion and contraception than the Church does and are surprised to learn about, say, differences in the treatment of incomplete miscarriages. Sometimes they don’t know that a hospital is Catholic—as is the case for more than one-third of women receiving their reproductive care at a Catholic facility.

And yes, sometimes, the medical norm and the Catholic teaching are so deeply at odds that patients and doctors couldn’t imagine a conflict. For example, many OB/GYNs consider it ideal to perform a tubal ligation during a C-section because it eliminates the need for an additional procedure, with an additional incision and anesthesia, which can cause complications. The ban on the procedure in Catholic hospitals can take people by surprise, either because the procedure seems so common, sensible, and innocuous—or because they unexpectedly end up giving birth in a Catholic hospital.

Or, consider that doctors don’t categorize hysterectomies as a form of “sterilization” at all, and so they sometimes find themselves surprised to learn that transgender hysterectomies are barred on those grounds. As one doctor who unwittingly scheduled her transgender patient for a hysterectomy at a Catholic hospital put it, “No one would ever, ever do a hysterectomy exclusively for sterilization. I have never even had a hysterectomy [at this hospital] questioned.”

A lot of misunderstanding and confusion could be avoided if patients were informed at the outset that a hospital is Catholic and what the ERDs mean for them. When this possibility was raised in a New York Times article a few years ago, however, the Catholic Health Association’s senior director of theology and ethics replied that no business, whether a contractor or a car salesman, is “going to lead off with what they don’t do.”

That explanation might work if Catholic health care functioned first as a business with primarily economic concerns. But that would sell Catholic health care short. Concern for patients combined with clear expression of Catholic commitments regarding care should be the goal, and transparent implementation of this should take priority over worries about the bottom line.

The Catholic health-care tradition matters. It brings something important to larger conversations about how faith is lived through action and about acting within one’s ethical beliefs. It brings something important to the Church, in that millions of people who may never otherwise come into contact with Catholicism interact with it when they come through the hospital doors. It’s worth defending. And the best way to defend it is to clearly articulate respect for conscience rights within the context of America’s pluralistic society while advocating for greater access to health care for all.