Catholic Abortion Hospital Smackdown: Part II

You can read about that here.

What happens will depend in significant measure on the decisions of Lloyd Dean (pictured), the president and CEO of Catholic Healthcare West.

To make a long story short, Bishop Olmsted has threatened to “publicly revoke [his] endorsement of St. Joseph’s Hospital as a ‘Catholic’ hospital.”

The result may already be known by the time you read this (reports on Thursday indicated that the parties were in discussion, trying to work out an agreement), but whichever way it goes, there are some interesting canonical aspects to this case—and we’re likely to hear more about the story in the future.

So let’s get to it . . .
Who Gets to Be a Catholic Hospital?

Some in the press (including folks who should know better), have been claiming that this doesn’t mean that the hospital would have to stop calling itself “Catholic.”

For example, USA Today states:

St. Joseph’s would not be required to stop calling itself Catholic. . . . Numerous Catholic institutions, from universities to hospitals to publications, call themselves Catholic without being affiliated directly with the church. St. Joseph’s has no official connection with the bishop, but it was founded by the Sisters of Mercy, a Catholic religious order.

And the National Catholic Reporter (not Register) states:

St. Joseph’s has no official connection with the bishop, but it was founded by the Sisters of Mercy, a Catholic religious order.

Numerous Catholic institutions, from universities to hospitals to publications, including the National Catholic Reporter, view themselves as Catholic without being directly affiliated with the official church.

The terms “affiliated directly,” “official connection,” and “directly affiliated” are canonically ambiguous. I don’t know what they mean, other than that St. Joseph’s Medical Center (and the Reporter and many other institutions) are not directly owned, operated, or erected by the bishop.

What I do know is that the Code of Canon Law says the following:

Can. 216 Since they participate in the mission of the Church, all the Christian faithful have the right to promote or sustain apostolic action even by their own undertakings, according to their own state and condition. Nevertheless, no undertaking is to claim the name Catholic without the consent of competent ecclesiastical authority.

And:

Can. 300 No association is to assume the name Catholic without the consent of competent ecclesiastical authority according to the norm of can. 312.

The competent ecclesiastical authority for a hospital operating in a particular diocese being the diocesan bishop:

Can. 312 §1. The authority competent to erect public associations is:

1/ the Holy See for universal and international associations;

2/ the conference of bishops in its own territory for national associations, that is, those which from their founding are directed toward activity throughout the whole nation;

3/ the diocesan bishop in his own territory, but not a diocesan administrator, for diocesan associations, except, however, for those associations whose right of erection has been reserved to others by apostolic privilege.

§2. Written consent of the diocesan bishop is required for the valid erection of an association or section of an association in a diocese even if it is done by virtue of apostolic privilege. Nevertheless, the consent given by a diocesan bishop for the erection of a house of a religious institute is also valid for the erection in the same house or church attached to it of an association which is proper to that institute.

The bottom line is that the term “Catholic” implies that an initiative is run or at least accepted and approved by the Catholic Church and that it operates under Catholic theological and moral principles. The Church doesn’t want people misled by initiatives that claim to be Catholic but act in non-Catholic ways (e.g., “Catholics for Choice”). Consequently, to use the name “Catholic” you need the approval of the competent ecclesiastical authority.

It doesn’t matter whether you “call” or “view” yourself as Catholic. You can even be a Catholic institution and yet not have the right to call yourself that, as illustrated by the case of Catholic schools:

Can. 803 §1. A Catholic school is understood as one which a competent ecclesiastical authority or a public ecclesiastical juridic person directs or which ecclesiastical authority recognizes as such through a written document.

§2. The instruction and education in a Catholic school must be grounded in the principles of Catholic doctrine; teachers are to be outstanding in correct doctrine and integrity of life.

§3. Even if it is in fact Catholic, no school is to bear the name Catholic school without the consent of competent ecclesiastical authority.

In light of these canons, the press should avoid such blithe statements regarding whether an institution can licitly be called “Catholic” when the competent local bishop says it is not a Catholic organization.
Who Gets to Interpret the Directives?

Another interesting canonical aspect of the case concerns the interpretation of the USCCB’s Ethical and Religious Directives, which Bishop Olmsted believes were violated. The ERDs do not address every possible medical situation explicitly, and so judgment is required to discern how a particular directive applies to a particular medical case. According to Bishop Olmsted, St. Joseph’s Medical Center violated the following directive (ERD 47):

Operations, treatments, and medications that have as their direct purpose the cure of a proportionately serious pathological condition of a pregnant woman are permitted when they cannot be safely postponed until the unborn child is viable, even if they will result in the death of the unborn child.

Because we aren’t privy to all the medical facts of the case, it’s impossible to determine which parts of this directive Bishop Olmsted believes were not fulfilled (was the direct purpose a cure? was it proportionately serious? could it not be safely postponed? what do we mean by “safely”? was the child already viable? was it not an operation on the mother that left the child intact but instead a direct dismemberment of the child?). Despite this, Bishop Olmsted seems to be making a reasonable claim in asserting that the local bishop has the right, at least in ambiguous cases, to determine the application of the bishops’ directives as they are exercised in his own diocese. It is not practical, on a medically sensitive case, to consult the entire body of U.S. bishops regarding the meaning and application of a directive, and so it would naturally fall to the local bishop to make this call.
How Might This Get Resolved?

Because different bishops might have different takes on the meaning and application of particular directives, this suggests a way that Catholic Healthcare West might respond to Bishop Olmsted’s requirements. As you may recall, his letter to CHW stated:

1. CHW must acknowledge in writing that the medical procedure that resulted in the abortion at St. Josephs’ hospital was a violation of ERD 47, and so will never occur again at St. Joseph’s Hospital.

2. CHW must agree to a review and certification process conducted by the Medical Ethics Board of the Diocese of Phoenix to ensure full compliance with the Ethical and Religious Directives of the USCCB. The Bishop and his representative from the Medical Ethics Board must have appropriate access to their facilities and protocols for review. (As hospitals and health care organizations submit to similar kinds of certifications from the government or from medical oversight organizations, it should not be unusual to have a group from the Catholic Diocese to certify that hospitals run by CHW are in full compliance with Catholic moral teaching).

3. CHW must agree to provide for the medical staff at St. Joseph’s Hospital ongoing formation on the ERD’s, as overseen by either the National Catholic Bioethics Center or the Medical Ethics Board of the Diocese of Phoenix.

If I were CHW, and if I were trying to work out a solution with Bishop Olmsted, I would accede to his second two requirements immediately and, in compliance with the first, I would propose a text like:

Catholic Healthcare West acknowledges that the medical procedure that resulted in the abortion at St. Joseph’s Hospital was a violation of ERD 47 as interpreted by the competent ecclesiastical authority, the local bishop in whose diocese the hospital operates, and so will it never occur again at St. Joseph’s Hospital.

And it would be somewhat hard for Bishop Olmsted to refuse such a formulation since he can scarcely claim to decide for all bishops everywhere how ERD 47 applies to particular medical cases.
What’s Going to Happen Next?

Hard to say, and it depends on what Catholic Healthcare West decides to do, but I expect there to be more on this case.

F’rinstance: CHW also operates another facility—Chandler Regional Hospital—which does not identify itself as Catholic—despite being run by CHW—and which according to Bishop Olmsted, “authorizes sterilizations and I know not what other immoral acts.”

The fact that it doesn’t identify as a Catholic institution—but is nevertheless run by an institution that does identify as Catholic (i.e., Catholic Healthcare West)—creates an interesting canonical situation, and Bishop Olmsted refers to addressing this situation in the near future, saying, “I recognize that my objections to how Chandler Regional operates are more involved, but I would foresee us needing to address those directly in the near future.”

He also (more than once) calls into question whether Catholic Healthcare West can be considered a Catholic organization, leading to another interesting question . . .
How Big Is This Story Going to Get?

You see, the thing is, Catholic Healthcare West is (as its name suggests) an initiative designed to serve the western part of the country, and it operates medical facilities in a variety of dioceses located in California, Arizona, and Nevada.

You can see a list of the facilities here.

Because CHW is a regional rather than a national or local organization, it falls squarely between the cracks of numbers 2 and 3 of Canon 312 §1, quoted above. The fact it operates regionally makes it the concern of more than one bishop, but not the whole conference of bishops. The most logical way to parse the situation is to say that the local facilities it runs are subject to the jurisdiction of the local bishops in whose territories they fall, while its home office is the proper subject of the bishop in whose territory its home office is located—which is to say, Archbishop George Niederauer of San Francisco.

This is why he gets carboned on the letter Bishop Olmsted sent, to keep him in the loop.

Only the situation is more complex than that since the case of a regional entity like this isn’t explicitly dealt with in the Code, and so Rome may need to be involved in how the case is resolved, which is why Archbishop Pietro Sambi (the Vatican’s “nuncio” or ambassador to the United States) is also carboned in the letter, to keep him in the loop.

The stage is therefore set (depending on what CHW decides to do, or has been doing) for this story to “go regional”—spreading across other dioceses in the western U.S., and especially the Archdiocese of San Francisco—or even “go global” (in a sense) if the Holy See gets involved and establishes canonical or moral principles that have application everywhere.

Time will tell.

What do you think?