Kentucky Governor Rejects Hospital Merger That Posed Establishment Clause Issues

Lexology reports that last week Kentucky Gov. Steve Beshear announced that he will not approve a proposed merger of several hospitals that includes the merger of the University of Louisville Medical Center with several other hospitals that are currently subject to the Ethical and Religious Directives (ERD) for Catholic Health Care Services.  His decision follows a report (full text) by Kentucky Attorney General Jack Conway recommending against approval, in part because of the complexity of the Establishment Clause issues involved. While many aspects of the merger raised questions, one has been the influence of Catholic religious guidelines on the University hospital. Here is a portion of the Attorney General's comment on a provision in the agreement that University hospital would no longer perform sterilizations (including tubal ligations) and would not dispense contraceptives:

Opponents of the proposed merger argue that approval of the transaction will have the impermissible effect of advancing religion by authorizing and requiring a public, state-owned hospital to be governed by the Catholic Church's religious directives.... The vagueness surrounding the ERD issue ... may likely set the stage for a constitutional challenge of the consolidation.... [T]he Attorney General is not yet in a position to opine as to whether the proposed consolidation satisfies the United States and Kentucky Constitutions....In any event, such litigation would undoubtedly be lengthy and would require the use of valuable state resources to defend.