BY: RON HAMEL, Ph.D.
Mr. Hamel is senior director, ethics, Catholic Health Association, St. Louis.
Part Six of the Ethical and Religious Directives for Catholic Health
Care Services addresses the issue of ethical integrity in the formation
of arrangements with other-than-Catholic organizations. This section was added
in the 1994 revision because of the new situation in health care — a dramatic
increase in mergers, acquisitions, joint operating agreements, and various other
affiliations between and among hospitals and health care systems as well as
physician groups and health plans.
The drafters of the Directives and the bishops view these arrangements
as both opportunities and challenges. On the one hand, the Directives
give Catholic health care organizations an opportunity to witness to their religious
and ethical commitments, provide a more extensive continuum of care to the community,
witness to stewardship of limited resources, and provide more equitable access
to basic care for the poor and vulnerable. On the other hand, such arrangements
can be a challenge to the identity of Catholic organizations as well as to their
ability to live out the Directives. This is especially true when the
Catholic organization partners with an organization that does not share its
moral convictions.
Part Six does not preclude such arrangements. The bishops recognize that there
are various market, economic, demographic, and geographic pressures that might
diminish a Catholic organization's options (e.g., partnering with another Catholic-sponsored
health care facility or system) and require it to partner with an other-than-Catholic
organization. However, because of the potential dangers, Part Six does call
for a systematic and objective moral analysis of all such arrangements. The
six directives in the section are offered to assist Catholic health care organizations,
as well as bishops, in this analysis.
Until June 2001, Part Six contained four directives and an Appendix that explained
the principle of cooperation. The latter is the principle employed to assess
the moral justifiability of the Catholic organization's cooperation with what
the church judges to be the wrongdoing of the other-than-Catholic organization.
In the spring of 2000, the Congregation for the Doctrine of the Faith (CDF)
instructed the National Conference of Catholic Bishops (now known as the U.S.
Conference of Catholic Bishops [USCCB]) to revise Part Six of the Directives,
including the Appendix. In the judgment of the Holy See, the Appendix (in conjunction
with the USCCB's Commentary on the CDF's 1975 document, Quaecumque Sterilizatio)
had given rise to misinterpretations and misapplications of the principle of
cooperation, as evidenced in three arrangements in the United States that had
been brought to the Holy See's attention. The CDF had several specific concerns
it wanted addressed.
- First, it sought a clarification of the distinction between material and
formal cooperation so as to exclude any possibility of proportionalist* interpretations
of the principle.
* Generally speaking, proportionalism is a method of moral analysis that
maintains that the moral rightness or wrongness of an act can be determined
only when all dimensions of the act are considered — the proportion between
premoral values and disvalues associated with the action, the agent's intention,
foreseeable consequences, and the morally relevant circumstances. This approach
calls into question the assessment of the moral rightness or wrongness of
an action on the basis of the moral object (the act itself), as well as the
notion of intrinsic evil and exceptionless behavioral moral norms. For example,
a proportionalist might say that sterilization involves a premoral disvalue
(loss of the capacity to procreate), but that this disvalue might be morally
justified depending on the circumstances and intention. It is the total meaning
of the action that determines its moral rightness or wrongness. Pope John
Paul II rejected proportionalism in his encyclical Veritatis Splendor (1993).
- Second, it was concerned about the application of the principle of cooperation
to institutions and how that application differs from its application to individuals.
- Third, it wanted a complete review of the category of "duress."
The CDF believed that the presentation of duress in the Appendix
led to the conclusion that actions that are intrinsically
evil could be considered licit because of duress. This, the
CDF believes, is incompatible with the teaching of Evangelium
Vitae (para. 74) and Veritatis Splendor (paras.
71-83). After more than a year of consultation and several
drafts, the USCCB voted to approve the present text at its
June 2001 meeting.
With the exception of its last paragraph, the text of the
Introduction to Part Six was left intact. In the 2001 revision,
the Appendix was deleted rather than revised. The final paragraph
in the Introduction explains the reason for the deletion of
the Appendix and serves as an implicit caution against appealing
to the Appendix for guidance. In place of the Appendix, the
Introduction exhorts the use of reliable theological experts
to interpret and apply the principle of cooperation. This assumes,
of course, that those experts will take account of the new directives
in this section, as well as the specific concerns of the Holy
See over the Appendix. The final phrase of the Introduction
is quite important and, in a sense, establishes a basic assumption
when considering arrangements, namely, that Catholic health
care providers, as a rule, should avoid partnering with other
providers that would involve them in cooperation with the other
providers' wrongdoing. The stated presumption then is against
cooperating with others involved in wrongdoing. Any licit cooperation
must be for serious reasons and when there are no better options.
Directives 67 and 68
Directives 67 and 68 remain unchanged from the 1994 version.
They exhort health care leaders and others to consult with the
diocesan bishop or his health care liaison when there is the
possibility that a decision about a particular arrangement could
lead to scandal or harm the reputation or identity of the Catholic
health care organization. Experience has shown that it is generally
more helpful and effective if the diocesan bishop is brought
into the process sooner rather than later. The bishop must give
his approval to any arrangement involving a Catholic health
care organization that falls under his jurisdiction or his nihil
obstat (his judgment that nothing morally objectionable
stands in the way of the finalization of the arrangement) if
the organization is sponsored by religious institutes of pontifical
right. In addition, Directive 68 specifies that arrangements
that affect the mission or identity of the Catholic partner
must be consistent with church teaching and discipline.
Directive 69
The substance of Directive 69 remains unchanged from the 1994
version. There have been some wording changes for the sake of
precision. This directive cautions a Catholic organization that
is considering entering into an arrangement with an other-than-Catholic
organization that is involved in wrongdoing to structure the
arrangement in such a way that any participation in or cooperation
with the wrongdoing is limited to what is permitted by the principle
of cooperation (i.e., mediate material cooperation).
Directive 70
This directive was inserted in the 2001 revision to address explicitly one
of the CDF's primary concerns, namely, Catholic health care facilities engaging
in immediate material cooperation (i.e., participating in the act itself or
contributing to its performance in some essential way) in intrinsically evil
actions. The Appendix in the 1994 version interpreted the principle of cooperation
as permitting this type of cooperation when duress was present. The text read:
"Immediate material cooperation is wrong, except in some instances of duress.
The matter of duress distinguishes immediate material cooperation from implicit
formal cooperation. But immediate material cooperation — without duress — is equivalent
to implicit formal cooperation and, therefore, is morally wrong."
The CDF has rejected this interpretation, claiming that it
is inconsistent with the teaching of Evangelium Vitae (para.
74) and Veritatis Splendor (paras. 71-83). Some theologians
maintain that such cooperation for reasons of duress is reflected
in parts of the tradition. Although this directive may not resolve
the larger theological debate, it does resolve the practice
of Catholic health care institutions — they may not enter into
any arrangement that involves immediate material cooperation
in the wrongdoing of others when that wrongdoing consists in
intrinsically evil actions.
Immediate material cooperation would likely include such things
as ownership, governance, or management of the entity that offers
prohibited procedures; financial benefit derived from the provision
of the procedures; supplying elements essential to the provision
of the services such as medical or support staff or supplies;
or performing or having an essential role in the procedure.
An Important Footnote
Directive 70 is followed by an important footnote (n. 44). The first part of
this footnote acknowledges differences in moral gravity among intrinsically
evil actions. Direct sterilization, for example, while judged to be intrinsically
evil, is not as morally grave as abortion or euthanasia.
A second part of the footnote appeals to Pope John Paul II's June 27, 1998,
Ad Limina Zddress to the bishops of Texas, Oklahoma, and Arkansas and
to a quotation from the CDF's Quaecumque Sterilizatio in support of the
CDF's prohibition of immediate material cooperation in intrinsically evil actions.
In his address, John Paul II reiterates the "absolute prohibition" against abortion,
direct sterilization, and euthanasia in Catholic health care facilities (Origins,
vol. 28, no. 16, 1998, p. 283).
The quotation from Quecumque Sterilizatio reads: "Any cooperation institutionally
approved or tolerated in actions which are in themselves, that is, by their
nature and condition, directed to a contraceptive end . . . is absolutely forbidden.
For the official approbation of direct sterilization and, a fortiori, its management
and execution in accord with hospital regulations, is a matter which, in the
objective order, is by its very nature (or intrinsically) evil." This quote,
which addressed direct sterilization in Catholic hospitals (rather than in partnerships),
is used here to underscore the prohibition of formal and immediate material
cooperation.
The final part of footnote 44 is very important. It states
that Directive 70 supersedes the "Commentary on the Reply of
the Sacred Congregation for the Doctrine of the Faith on Sterilization
in Catholic Hospitals" published by the National Conference
of Catholic Bishops (September 15, 1977). The CDF believes that
the Commentary (in addition to the former Appendix) led to misapplications
of the principle of cooperation by suggesting that direct sterilizations
could be performed for reasons of duress. The practical effect
of this directive superseding the Commentary is that the theological
reasoning of the Commentary no longer can be used in evaluating
the liceity of arrangements with other-than-Catholic health
care facilities.
Directive 71
This is Directive 70 from the 1994 version with some modifications. The directive
as a whole deals with the nature of scandal, the role that scandal can play
in assessing the moral liceity of arrangements, and the role of the diocesan
bishop in assessing the presence and potential impact of scandal.
The possibility of scandal is a critical factor in judging the moral acceptability
of any arrangement with an other-than-Catholic partner; it is an essential element
of the principle of cooperation. In fact, it is possible that a particular arrangement
cannot be pursued precisely because of scandal, even though the arrangement
reflects a morally justifiable form of mediate material cooperation (i.e., contributing
to the performance of an action in a nonessential way or mere association with
those performing the action). Scandal can be a decisive consideration. Ultimately,
the diocesan bishop has responsibility for assessing the threat of scandal and
dealing with issues surrounding possible scandal. He should do so in a way that
is sensitive to the potential effects of his decision on other dioceses both
in his own region and nationally.
An important footnote (n. 45) was added in the 2001 revision that clarifies
the meaning of "scandal." The footnote introduces the technical theological
definition of the term from the Catechism of the Catholic Church: "Scandal
is an attitude or behavior which leads another to do evil" (no. 2,284). This
footnote was added not only to underscore the gravity of scandal but also to
distinguish it from other reactions by the faithful that are often taken to
be scandal (e.g., disagreement, consternation, emotional upset).
As Directive 71 notes, true scandal (and even what portends
to be scandal) can often be avoided by clear explanations of
precisely what is being done, why it is being done, and how
it is consistent with church teaching. Appropriate education
for clergy and laity alike is a critical element to the success
of an arrangement between a Catholic entity and an other-than-Catholic
partner when there is morally licit cooperation with evil involved.
Directive 72
Directive 72 was added in the 2001 revision. In arrangements with other-than-Catholic
partners, it is essential for the Catholic organization to ensure that what
was agreed to, especially with regard to cooperation with the partner's wrongdoing
as well as overall consistency with Catholic moral teaching, is being observed.
The directive calls for a periodic assessment of the implementation of the agreement
(not of the agreement itself), assuming that the original agreement was consistent
with Catholic moral teaching.
The 2001 revisions of Part Six of the Directives will
directly affect the structuring of new arrangements with other-than-Catholic
partners that are involved in wrongdoing. Considerable moral
distance will need to be established and maintained between
the Catholic entity and the provision of prohibited services,
such that the arrangement constitutes mediate material cooperation.
This may be particularly difficult when the Catholic hospital
would become the sole provider in the community.
What is at issue here is the integrity of the Catholic organization. How do
Catholic health care facilities remain true to their identity — their beliefs
and commitments — in the complex, secular, and pluralistic world of health care
while meeting the needs of the communities they serve? The goal of any moral
assessment of a possible arrangement with an other-than-Catholic partner — whether
that assessment is conducted by Catholic health care providers, diocesan bishops
and their consultants, theologians, or ethicists — is to ensure the identity and
integrity of the Catholic organization, taking into account the uniqueness and
complexities of each situation. The principle of cooperation — one of the most
difficult moral principles to apply — is a tool in that process.