BY: FR. THOMAS KOPFENSTEINER, STD
Fr. Kopfensteiner is chair, Department of Theology,
Fordham University, Bronx, NY.
New partnerships among health care providers have been common phenomena
over the past several years. Catholic providers have created partnerships among
themselves and had strategic opportunities to enter relationships with other-than-Catholic
providers. These latter partnerships have been the subject of scrutiny and,
in some cases, occasions for serious reservations on the part of theologians
and church leaders. In fact, last year the U.S. Conference of Catholic Bishops
revised the Ethical and Religious Directives for Catholic Health Care Services
in light of recent observations by the Holy See that found certain partnerships
to be illicit applications of the principle of cooperation with regard to the
provision of sterilization. To be sure, one advantage of the current climate
in health care has been renewed discussion of the principle of cooperation and,
more precisely, of the ways its internal logic is linked to an ethic of responsibility
concerning a social good such as health care.
This article will examine the various phases that are entailed in analyzing
potential partnerships between Catholic and other-than-Catholic providers. Successful
partnerships reveal a five-fold process at work:
- Identification of a common ground between the partners
- Recognition of the duty to avoid wrongdoing
- Careful review of the partnership to safeguard the integrity
of the moral tradition
- Analysis of duress as one of the factors to be taken into
consideration with prudence in assessing whether to enter
into a partnership
- Consideration of the scandal that might preclude an otherwise
legitimate partnership
Sharing Responsibility for Health Care
From a ministerial perspective, partnerships with other-than-Catholic providers
begin with an ethics baseline that specifies the values and goals held in common.
Catholic providers find more in common with other faith-based providers than
with community hospitals, and more in common with community hospitals than with
for-profit institutions. A wide range of moral interests usually unite such
partners: a concern to protect and improve community health, a desire to provide
or expand services to the underserved, a commitment to respect a person's physical
and spiritual well-being, and a belief that one can be a better steward of resources
through a spirit of collaboration rather than through competition.
Working from a shared ethics baseline is important for at least three reasons.
First, it ensures that Catholic identity in health care is not reduced to what
the Catholic partner does not do. Second, it establishes a foundation
for future discussions between the partners, as well as a context in which the
Catholic partner can engage other providers in ventures that might emerge at
some future date. Finally, and most significant, working from a shared ethics
baseline offers a new context for understanding the traditional principle of
cooperation.
The moral tradition presented the principle of cooperation
in the language of wrongdoing. With an ethics baseline, the
grammar of wrongdoing is completed by a grammar of responsibility.
A grammar of responsibility focuses on the shared sense of the
good life held in common with all members of the community.
This is particularly important when a public good such as health
care is at stake. Focusing on our responsibility to work with
others is not meant to compromise our moral integrity; rather,
it advances a more adequate context in which to weigh the goods
and evils that any decision to partner with other providers
will entail. A grammar of responsibility offers the proper perspective
in which to consider the long-term effects of our decision to
partner or not, to calculate the harms that we might bring about,
and to realize the importance of the goods that are in danger
of being lost.
The Duty to Avoid Wrongdoing
Nevertheless, partnerships can pose serious challenges to the identity of Catholic
health care institutions and their ability to implement the Ethical and Religious
Directives, especially when partnerships are formed with those who do not
share Catholic moral principles. When a partner is involved in services judged
morally wrong by the church, the partnership must be evaluated by the categories
provided by the principle of cooperation.
Traditionally, the principle of cooperation discerned and
measured the moral distance between two agents. In the manuals,
for instance, the principle was used in reference to the cooperation
with wrongdoing of, for example, a mail carrier, a pharmacist,
or a newsstand owner. Moral agency can extend to institutions
also. A nation's armed forces can be a wrongdoer; a political
party that is opposed to Catholic teaching can be identified
as a wrongdoer; a quasi-religious sect can be a wrongdoer. Given
that a "wrongdoer" can be an institution, it is fair to assume
that a "cooperator" in wrongdoing can also be an institutional
agent.
The principle is applied to institutions by analogy. Analogy allows us to
extend to institutions moral attributes that belong most properly to persons.
For instance, analogy is used when we attribute a "conscience" to an institution
in order to protect our religious commitments in health care. Similarly, we
conceive of the institution as a cooperating agent in order to hold the institution
responsible for the moral parameters of the partnership.
What is precluded absolutely is formal cooperation in situations in which
one shares in the intention of the wrongdoer. Sharing in the wrong intention
corrupts the act. By sharing in the wrong intention, one shares in the sin of
the other. What might be allowed, however, is material cooperation in which
one's action can be set apart from the wrongdoer's, creating coherence between
intention and action. That is, when we neither intend the wrongdoing nor act
as the primary agent of the wrongdoing, our cooperation is licit. To maintain
this coherence institutionally, all proscribed procedures must be "carved out"
of the partnership. A "carve-out" is a legal mechanism ensuring that the Catholic
partner does not share in the governance, management, performance, or financial
benefit of the wrongdoing.
The adequacy of these mechanisms was the focus of observations
of the Holy See in a case in which Seton Medical Center, Austin,
TX, which is sponsored by the Daughters of Charity, assumed
responsibility for Brackenridge Hospital, a community hospital
in that city. The operating agreement between Seton and the
city allowed for the continued provision of sterilizations.
The carve-outs were needed to guarantee that the sterilizations
would be the responsibility of the city alone. Without them,
Seton would have become the principal agent of the wrongdoing,
which would have made the partnership an illicit form of cooperation.
Accurate Moral Description
The case of St. Vincent's Doctors Hospital in Little Rock, AR, is another example
of illicit cooperation. In this case, the Holy See's observations were based
on the distinction between explicit and implicit formal cooperation found in
the Appendix to the 1994 Directives.
A traditional example illustrates the meaning of implicit formal cooperation.
Imagine that one person hoists another through a window in order to rob the
house. Helping someone through a window is not in itself wrong and, under some
circumstances, might be virtuous. In this case, the cooperator might not explicitly
cooperate in the wrongdoing; in fact he may explicitly try to dissuade his friend
from robbing the house. But because he cannot reasonably abstract himself from
the action as a whole, his cooperation in the wrongdoing is implicitly formal.
St. Vincent's, sponsored by Catholic Health Initiatives, Denver, entered a
partnership with the Arkansas Women's Health Center. The women's health center,
however, would not have existed had St. Vincent's not shared in its establishment.
It was established for the sole purpose of providing sterilizations within
the hospital. Even though St. Vincent's leaders publicly deplored the wrongdoing,
their involvement was an indispensable and essential condition for its occurrence.
According to the Holy See's observations, the category of implicit formal
cooperation prevents a truncated analysis of moral action that artificially
tries to isolate the agent or institution from what is happening from a moral
point of view. Try as one may to describe it otherwise, the action of the cooperator
can have no other reasonable explanation than sharing in the wrongdoing of another.
The category, then, is accusatory in that it calls for an honest assessment
and description of what is taking place. In this way, the category of implicit
formal cooperation prevents an abuse of casuistry.
A word of caution is appropriate for those considering the
category of implicit formal cooperation. If each and every circumstance
of wrongdoing, or even knowledge that wrongdoing was to occur,
were to be exaggerated into implicit formal cooperation, then
all distinctions between material and formal cooperation would
collapse.
Institutional Cooperation and Duress
The articulation of the principle of cooperation in the 1994 directives was
in line with the U.S. bishops' Commentary (Origins, no. 11, 1977, pp.
399-400) on the Congregation for the Defense of the Faith's statement on sterilization,
Quaecumque Sterilizatio (Origins, no. 10, 1975, pp. 33-35). The
Commentary had been used to allow for the direct participation of Catholic facilities
in sterilization, the rationale for it being that such participation would preclude
greater harms from occurring—the closing of hospitals, for example. In the newly
revised directives, however, the Commentary has been superseded by Directive
70, which says, "Catholic health care organizations are not permitted to engage
in immediate material cooperation in actions that are intrinsically immoral,
such as abortion, euthanasia, assisted suicide, and direct sterilization."
An intractable dilemma is created, however, when these acts are distinguished
by their varying degrees of moral gravity, as the bishops do in a note. A situation
can be imagined in which an institution would have to directly participate in
the wrongdoing of sterilization in order to prevent greater and irreparable
harms from occurring. There is no consensus on this issue in the theological
community, and it presents a most difficult pastoral challenge.
To be sure, the Commentary provided a valid insight into the
moral tradition of the church. The element of duress has always
been a morally relevant factor in the application of the principle.
Even the Holy See's observations on Brackenridge, sent to thebishop
of the Diocese of Austin, admit that duress can justify a direct
participation in wrongdoing: "A locksmith forced at gunpoint
to open a safe is not required to sacrifice his life to protect
money." The legitimating argument is that one's direct participation
in the wrongdoing is done to prevent harms that cannot be repaired
or to protect goods that cannot otherwise be preserved.
In the case of institutional cooperation, the element of duress would refer
to factors that go beyond any medical indications for the sterilization to be
performed. Medical indications are necessary but not sufficient criteria for
cooperating in a sterilization at a Catholic health care institution. To perform
a sterilization for medical indications alone cannot be justified by Catholic
moral theology; earlier attempts to justify a sterilization on the basis of
the principle of totality do not meet the more stringent evidentiary threshold
of the principle of cooperation. Invoking the principle of totality fails to
account for the legitimate ways of avoiding pregnancy available to the patient,
including abstinence.
The argument from duress is that external factors—mandated benefits or imposed
standards of care, for instance—may so diminish an institution's autonomy that
there is no feasible alternative but to cooperate in order to avoid greater
or irreparable harm from occurring—for example, the forfeiture of an obstetrics
unit that handles high-risk pregnancies in a way that is consistent with Catholic
moral teaching. Or our unwillingness to cooperate in such strictly circumscribed
cases may lead to the closing of a facility and, not only the subsequent loss
of a Catholic institutional presence in health care but, perhaps, the complete
loss of health care services in a community.
From a pastoral point of view, when dealing with cases of
institutional duress, the principle of cooperation will account
for the evil that is done and the good that is achieved. Is
the good valued highly enough, or is there a sufficient sense
of urgency to protect it, to outweigh the evil caused by cooperation?
Moreover, when dealing with such cases, the principle of cooperation
can be coupled with the law of graduality that is constitutive
of all the church's evangelization efforts. The provision of
health care is a vehicle of evangelization; as with other vehicles,
not all of its teachings can be accepted at once or with the
same conviction. This calls for a strategy of action that recognizes
that the church is part of a pluralistic society, even while
it hopes to effectively shape and influence society. That is,
even though the wrongdoing cannot be abolished now, one can
aim to contain and limit it as much as possible in the present,
hoping to build a consensus that will diminish it further in
the future.
Avoiding Scandal
A prudential application of the principle will also consider
the possibility that an institution's cooperation will lead
to scandal. Institutional applications of the principle will
be more susceptible to scandal because of the public nature
of institutions. Scandal is most likely to be an issue when
"partnerships are not built upon common values and moral principles"
(Ethical and Religious Directives) Introduction to Part
Six). Obviously, the more divergent the values of the partners,
the higher the risk of scandal.
The traditional definition of scandal is "leading another person into sin."
Scandal is of such importance in the application of the principle that "cooperation,
which in all other respects is morally licit, may need to be refused because
of the scandal that might be caused" (Directive 71). Keeping the issue of scandal
in mind will ensure that institutional survival does not depend upon sacrificing
Catholic identity through wholesale accommodation or through dilution of one's
sense of wrongdoing. At the same time, the ambiguity often caused by partnering
must not be exaggerated to preclude legitimate forms of cooperation. "Scandal
can sometimes be avoided by an appropriate explanation of what is in fact being
done at the health care facility under Catholic auspices" (Directive 71). So
although the bishops rightly encourage "an increased collaboration among Catholic-sponsored
health care institutions" we should resist the temptation to fall into a ghetto-like
mentality in Catholic health care.
The assessment of the possibility of scandal will build on
a nuanced consideration of the kinds of evil that may be involved
in the cooperation in wrongdoing. Abortion and assisted suicide
are, for example, graver evils than reproductive technologies
or sterilization. To attack and destroy human life is a graver
evil than bringing life about or suppressing the reproductive
function. One can formulate an axiom: The graver the evil, the
higher the risk of scandal; the higher the risk of scandal,
the more distant the Catholic partner must be from the wrongdoing.
Copyright © 2002 by the Catholic Health Association of the United States
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