Madeleine O'Neill//May 4, 2022
//May 4, 2022
When St. Joseph Medical Center joined the University of Maryland Medical System in 2012, the hospital underwent an unusual transformation.
The longtime Catholic hospital was no longer run by a religious institution. But it remained committed to Catholic principles, including church rules regarding medical procedures like abortion.
It became, in the words of one scholar, a “zombie religious institution,” where the vestiges of religious control remained even after the hospital came under new ownership — in this case, ownership by Maryland’s largest hospital system.
The arrangement has come under fire as part of an ongoing civil rights lawsuit brought by Jesse Hammons, a transgender man who was denied gender-affirming surgery at St. Joseph Medical Center because of the hospital’s religious views on sterilization.
And while UMMS has argued in those proceedings that it is a private corporation, a federal judge found otherwise, creating complicated questions about the entanglement of religion and the state.
“It’s an extreme example of a textbook Establishment Clause violation,” said Elizabeth Sepper, a professor at the University of Texas School of Law.
“If you put this on an exam, no one would believe it existed, and it would be too easy,” she said.
When the University of Maryland Medical System acquired St. Joseph Medical Center in 2012, the Towson hospital’s future seemed bleak.
SJMC was losing millions of dollars a month amid allegations that a celebrated cardiologist had unnecessarily placed stents in hundreds of patients who didn’t need them.
A lawsuit over those claims settled for $37 million in 2014. As part of the purchase agreement with UMMS, St. Joseph’s former owner, Catholic Health Initiatives, maintained liability stemming from the scandal.
UMMS also reached an agreement with the Archdiocese of Baltimore that St. Joseph’s would continue to operate as a Catholic hospital, meaning it would follow the Ethical and Religious Directives for Catholic Health Care Services, a set of guidelines developed by the U.S. Conference of Catholic Bishops.
In a statement to The Daily Record, UMMS said St. Joseph’s is “audited on a regular basis to ensure compliance” with the directives.
St. Joseph’s has flourished under the UMMS banner, rising to become one of the top-ranked hospitals in Maryland according to U.S. News and World Report.
But Hammons’ lawsuit raised questions about the arrangement. Hammons, a transgender man, alleged that he was denied gender-affirming surgery at St. Joseph Medical Center because the operation would have violated the Catholic medical directives.
The complaint, filed in July 2020, claimed that UMMS was an “instrumentality of the state” and bound by the First Amendment’s Establishment Clause.
“An instrumentality of the state may not operate a Catholic hospital or deny medical care to transgender patients based on Catholic religious beliefs. By invoking Catholic religious doctrine as a basis for canceling Mr. Hammons’s medically necessary surgery, Defendants violated the Establishment Clause of the First Amendment,” Hammons’ lawyers wrote. The American Civil Liberties Union joined in the case.
UMMS, in turn, argued that it has been a private, not-for-profit corporation since the Maryland General Assembly privatized it under state statute in 1984.
In a statement, UMMS spokesperson Michael Schwartzberg pointed to the legislation that created the system as a private corporation, “which is a distinction not afforded to other corporate entities created by the legislature such as the Maryland Environmental Service, Bainbridge Development Corporation and many others.
“UMMS has consistently been identified in legislation and Maryland Attorney General correspondence as a private corporation and is exempt from government procurement processes, state pension and labor relations oversight and public information act requests,” Schwartzberg said.
But despite UMMS’s insistence that it is a private corporation, judges have repeatedly found that it is at least an “instrumentality” of the state of Maryland, inextricably linked with the government. In the Hammons case, that finding benefitted UMMS even as the medical system continued to argue it is a private entity.
In 2011, Maryland’s Court of Appeals ruled that the medical system is an instrumentality of the state for purposes of the Public Information Act — though the ruling also exempted UMMS from disclosing records.
Even the Maryland Manual, an official guide to Maryland government, describes UMMS as only “an ostensibly private corporation.”
“The General Assembly ensured that the State would continue to play a prominent role in the System’s governance when it required that the UMMS’s articles of incorporation and the initial transfer of assets from the State be approved by the Board of Public Works, that the voting members of the Board be Governor’s appointees, and that there be continuing operational coordination between UMMS and the University,” the manual notes.
The federal judge overseeing Hammons’ lawsuit agreed, in a decision that ultimately undercut the civil rights claims against UMMS.
“Although UMMS may function like an independent corporate medical system in some respects, it is nevertheless tethered to State government and subject to State oversight in important ways,” U.S. District Judge Deborah K. Chasanow wrote in a memorandum opinion last summer.
Chasanow ruled that as an “arm of the state,” UMMS is shielded from civil rights suits under the doctrine of sovereign immunity. In other words, two of Hammons’ most critical claims — that UMMS violated the First Amendment’s Establishment Clause and the Equal Protection Clause of the Fourteenth Amendment — could not proceed because UMMS has governmental immunity.
The only remaining claim in Hammons’ lawsuit alleges that UMMS violated the Affordable Care Act’s ban on sex discrimination in health care settings. Chasanow denied a request from Hammons’ lawyers to allow for an appeal that would put the remainder of the lawsuit on hold.
Louise Melling, the deputy director of litigation at the ACLU’s national office, said there are “a series of harms” that can arise when a state entity owns a religious hospital.
“One is the question about what it means about the role of the government,” Melling said. “What does it mean if government and government institutions are governed by any individual or religious entity’s rules? We have a constitution that says you’re supposed to keep religion and government separate.”
Patients also face access concerns when their community hospital follows religious protocols.
“What can get complicated from a patient perspective is if the hospital says it’s the University of Maryland hospital system, even an educated consumer isn’t going to think, ‘Oh, I should just double-check about what services I’m going to get here,’ ” Melling said.
Schwartzberg said that medical services that aren’t offered at St. Joseph because of the Catholic religious directives are available at other UMMS hospitals to patients who need them.
“The University of Maryland Medical System remains dedicated to meeting the unique medical needs of transgender individuals, and this patient was offered the opportunity to have the procedure at another of the System’s hospitals,” Schwartzberg said of Hammons’ case.
Sepper, the Texas law professor, identifies UM St. Joseph Medical Center as a key site of church-state overlap in her forthcoming article for the Virginia Law Review, “Government’s Religious Hospitals.”
The article identifies a growing trend of purportedly public hospitals that still follow religious doctrines.
“Across the country, church and state have fused in powerful entities that deliver critical public services,” Sepper writes.
UM St. Joseph Medical Center is a particularly extreme example of this phenomenon, the article claims.
“UMMS is plainly part of the state,” Sepper writes. “Yet, for a decade, it has owned and operated UM St. Joseph as a Catholic hospital, subject to sectarian restrictions on care and oversight from the Catholic Church.”
UMMS disputed several facts in Sepper’s article, including the claim that its Board of Regents must approve UMMS’s annual contracts. Most UMMS contracts follow “standard, private sector approval protocols and are not subject to review or approval by the state,” Schwartzberg said.
Chasanow’s decision in the Hammons case was also based on claims made by Hammons, not by UMMS, Schwartzberg said.
“As the Hammons litigation is ongoing, no final judgment has been issued and it would be misleading to suggest otherwise,” he said. “We cannot offer further comment on pending litigation.”
Hammons’ lawsuit is still moving forward in federal court.
In its most recent filings, UMMS continued to straddle the line between a state entity and a private corporation. The medical system continued to deny that it is an instrumentality of the state in an amended answer to Hammons’ complaint filed last month.
And despite Chasanow’s ruling that UMMS is an instrumentality of the state — a decision that shielded UMMS from Hammons’ civil rights claims — the medical system is also claiming that it is protected under the Religious Freedom Restoration Act and the “ecclesiastical abstention doctrine,” which prohibits courts from interfering in religious disputes.o