Column: UC’s planned partnership with a Catholic hospital chain could be unconstitutional

Some of the troubling issues raised by the proposed “affiliation” between UC San Francisco, the state’s premier medical school, and the Catholic hospital chain Dignity Health are becoming clear.

There are the moral issues bound up in the idea of a public university partnering with a system that openly discriminates against women and transgender patients purely on religious grounds. And the ethical issues related to doctors having to misrepresent their patients’ conditions in order to fend off Catholic bishops’ interference with their professional judgments.

But another issue may have a greater impact on whether the UC regents ultimately give the plan their blessing: whether it’s even legal or constitutional.

Legal experts warn that affiliations between a public entity such as UC and a religious organization are inherently dubious. Regents and UCSF administrators seem to be aware of that, up to a point.

“I’m not sure we can do this,” Regent Sherry Lansing, chair of the board’s Health Services Committee and a supporter of the affiliation, said at a committee meeting Dec. 11.

“This relationship will require constant monitoring to make sure that we’re not putting our organization, the university or any individuals in circumstances in which they’re uncomfortable,” UCSF Medical Center Chief Executive Mark Laret said at the same meeting.

That’s sure to be a tall order. Since its merger this year with Colorado-based Catholic Health Initiatives, San Francisco-based Dignity Health has become part of the largest not-for-profit hospital chain in the nation. (The chain is being rebranded as CommonSpirit Health.)

The pre-merger Dignity operated 39 hospitals, of which 15 are designated “non-Catholic” and 24 Catholic. All are subject to Catholic restrictions on care: The non-Catholic institutions are ruled by the church’s “statement of common values,” which bars “direct abortions,” physician-assisted suicide and fertility treatments such as in vitro fertilization, or IVF.

The others are subject to the more restrictive Ethical and Religious Directives for Catholic Health Care Services (ERDs), which ban “direct abortions,” IVF, contraceptives, assisted suicide and “gender affirming care” such as hormone treatments and surgeries for transgender patients. The ERDs are enforced by local bishops, often stringently. (“Direct abortion” is not a medical term but a Catholic term, signifying the termination of a pregnancy by destroying a developing fetus any time after conception.)

The 101 hospitals that Catholic Health Initiatives brings to the merger are subject to the ERDs, raising concerns that the merged chain may eventually attempt to bring Dignity’s non-Catholic facilities under the stricter rules.

There may be no more important moment in time for the University of California to take a strong stand against the encroachment of religious doctrine into medicine than now, when patients’ rights to equal access to treatments are coming under increasing challenge from the religious right.

On Thursday, the Trump administration issued a final rule allowing healthcare workers — including doctors, nurses, paramedics and pharmacists — to refuse to provide care based on their own “religious beliefs or moral convictions.” The rule is being cast as protection for religious practices, but in fact it’s a weapon aimed at “women, LGBTQ people and religious minorities,” says Rachel Laser, president of Americans United for Separation of Church and State. The rule’s text makes clear that clearing the way for healthcare providers to refuse to perform abortions is among its chief goals.

UCSF has had professional arrangements with three Dignity hospitals in the Bay Area for years — the “non-Catholic” Sequoia Hospital in Redwood City and St. Francis Memorial Hospital in San Francisco, and the Catholic St. Mary’s Medical Center in San Francisco. The partnerships are focused mainly on discrete fields such as cardiology, pediatric burn services and neurosurgery.

UCSF, pleading that it is running out of treatment space, is proposing a drastic expansion of this relationship, including the addition of a fourth Dignity hospital, the Catholic Dominican Hospital in Santa Cruz.

Although the new arrangement would plainly be more comprehensive than the old, UCSF administrators have been close-mouthed about the details. The plan “has not been finalized,” UCSF spokeswoman Jennifer O’Brien told me this week.

Yet that only underscores doubts about how familiar the regents are with UCSF’s plans. The board’s Health Services Committee has held discussions about it at least twice, on Dec. 11 and April 9.

UCSF administrators have assured the regents that no full-time faculty would be asked to participate at Dignity hospitals in obstetrical or reproductive services, the most common flashpoints in the ERDs; that no provider would be required to join in any care to which he or she has a moral objection; and that UCSF patients would be “fully informed” about what services they could or couldn’t receive at the Dignity sites.

Is that enough to inoculate this arrangement from legal doubt? Almost certainly not. Philosophically or practically, it seems likely to violate legal strictures on the relationship between government and religion.

The foundational language on the separation of church and state comes, of course, from the U.S. Constitution, which bars Congress from making any law “respecting an establishment of religion.”

The California Constitution is “even more protective of the separation of church and state than the federal,” says Richard Katskee, legal director of Americans United, which has called on the regents to reject any affiliation agreement that would require UC to abide with the ERDs in any way. The California Constitution specifically prohibits any public entity in the state from ever making any payment from public funds “to support or sustain any school, college, university, hospital, or other institution controlled by any religious creed, church, or sectarian denomination whatever.” State courts have ruled that the clause covers even contracts for secular purposes in which a religious entity receives “a financial benefit from the government.”

The state Constitution is especially explicit about the University of California, mandating that UC must be “entirely independent of all political or sectarian influence.”

California non-discrimination law, moreover, bars business establishments from discriminating against patrons on the basis of sex (including gender identity), gender expression and sexual orientation. That applies to private businesses operating in the public sphere and to public entities such as UC.

“When you’re talking about UCSF patients going to a facility where they’re denied care based on religion, that is the state acting,” says Elizabeth Gill, a senior staff attorney at the ACLU of Northern California, which has two discrimination lawsuits pending against Dignity hospitals and a third against another Catholic healthcare chain. “That clearly violates both Constitutions.”

The ACLU also has warned UCSF that it may be treading on thin legal ice. “On its face,” the organization wrote March 12, “the UCSF/Dignity Health partnership raises a host of questions about how the government can legally partner with an entity that explicitly restricts patient care on the basis of its religious beliefs.”

UC’s legal office says it’s working on safeguards that would keep the affiliation legally sound, even as the deal remains in flux. “We’re working closely with UCSF,” Rachel Nosowsky, a deputy general counsel for UC, told the regents committee in December, “to make sure that what we get to and bring to this board at the end of the day will pass muster.”

The UCSF leadership has tried to finesse the hard questions about affiliating with Dignity by suggesting that the ERDs are relevant chiefly to OB/GYN services, in which they say UCSF faculty won’t participate.

Yet that interpretation is too narrow. The ban on abortions and contraception affects women in ways extending well beyond obstetrics and gynecology. Contraception could be crucial to the health of a woman undergoing chemotherapy, for example. And the contraceptive ban could disrupt the family planning of a woman admitted as an inpatient for any medical condition whose dosage of a birth control pill is interrupted while she’s in the hospital.

The stark reality that women can’t receive the full roster of reproductive services at Dignity runs counter to the chain’s claim to be a leader in treating underserved populations.

“We know that women who are denied their contraceptive of choice have worse health outcomes,” says Vanessa Jacoby, an associate OB-GYN professor at UCSF and a leading opponent of the proposal.

UCSF’s assurances that patients will be given explicit warnings about what services they can’t receive at Dignity, and can be transferred if they need such services as inpatients, are no answer to the fundamental inequities they face.

“A patient at Dignity may not be in a position to make a judgment about whether to accept a transfer,” says Stephen Diamond, an expert on economic rights at Santa Clara University law school. “That patient would face a daunting series of questions — while in extremis” — that wouldn’t confront a patient at UCSF’s own hospitals or nonsectarian institutions. “That unequal treatment of patients triggers constitutional concerns.”

It hasn’t been so long since UCSF presented itself in uncompromising opposition to the narrowing of reproductive health services for women. In October 2017, the university objected strongly to the abrupt shutdown of abortion services at Community Regional Medical Center in Fresno, a UCSF partner.

“We do not support any limits on abortions that are permitted under state and federal law,” UCSF told the ACLU in a letter signed by Laret, Chancellor Sam Hawgood and Medical Dean Talmadge E. King. “Our expectation is that hospital policy will align with UCSF’s commitment to comprehensive reproductive healthcare.” (The hospital eventually reversed its policy.)

Laret, Hawgood and King all are still in their jobs, and abortions are still permitted under state and federal law. UCSF’s proposal to affiliate with Dignity suggests that its commitment to reproductive health has changed. That’s never the right course, and it’s especially wrong now.

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