A California hospital owned by the Seventh-day Adventist church is citing the Religious Freedom Restoration Act as grounds for an exemption from recognizing a union of registered nurses. Three-quarters of the nurses at Ukiah Valley Medical Center have signed a petition calling for a union election as provided by the National Labor Relations Act. The hospital is owned by Adventist Health, one of California's largest health care chains which helps to operate 13 other hospitals throughout the state, and is part of the church's 159 facilities worldwide.

According to the San Francisco Chronicle, the Adventist church prohibits its 10 million members from belonging to labor unions which they say are "counter to Jesus' teachings." In a brief against the union petition filed with the National Labor Relations Board, attorneys for the sect argued that "The Church believes that the self-sacrifice required for its healing mission is inherently incompatible with the economically self-serving goals of unions."

But "self-sacrifice" seems to be a one-sided notion with the Church. According to information from the California Nurses Association -- the state's largest labor and professional group for RNs -- UVMC reported over $3 million in profits for 1997 to the California State Office of Health Planning and Development. A press release on September 24, 1998 added that Adventist Health has also "been expanding with acquisition of new hospitals..."

CNA says it was contacted last spring by nurses from Ukiah Valley Medical Center in response to "growing concerns about adequate staffing and excessive work loads that affect patient care conditions." A spokesperson for the group added that "Many nurses are working repeated extra shifts well beyond their scheduled hours, and are exhausted. That's a time bomb for patient safety."

Playing the RFRA/RLPA Card...

Conflicts between the nation's providers in the health care system and employees seeking to unionize is not new. Indeed, CNA is currently involved in organizing campaigns to represent 1,500 other Registered Nurses (RNs) throughout the state, many of whom work at hospitals operated by religious groups. In March, for instance, two-thirds of RNs at St. Agnes Medical Center in Fresno signed a union petition after complaining of problems similar to those alleged at Ukiah Valley -- short staffing, inadequate pay necessary to retain competent staff, and poor recruiting of new medical personnel. The St. Agnes facility is one of nine hospitals operated by Holy Cross Health Systems Corporation, based in South Bend, Ind.

But the Ukiah Valley Medical Center is defending its antiunion stance in what may well become a future strategy for health corporations linked to religious groups -- by citing the Religious Freedom Restoration Act. This opens a complicated legal history, and could effectively add church-owned hospitals to the growing list of enterprises which would be exempted under proposed "religious liberty" legislation. Let's start at the beginning...

* The Religious Freedom Restoration Act was passed by Congress in 1993. It sought to reverse a US Supreme Court decision, EMPLOYMENT DIVISION v. SMITH, which essentially stated that government could enforce a generally applicable, neutral civil law even though it infringed on a person's religious expression. The case involved an effort by a former drug counselor who had lost his job after admitting that he ingested peyote, an illegal hallucinogenic substance. The state of Oregon denied the plaintiff's application for unemployment compensation, even though he argued that the peyote use was part of a religious ritual for the Native American Church. The justices ruled that the enforcement of a drug law took precedence over the plaintiff's religious practice, since the law was theoretically applied to everyone and did not single-out or discriminate against a particular religious group.

The Religious Freedom Restoration Act sought to reverse EMPLOYMENT DIVISION v. SMITH, supposedly by "restoring" the use of a "compelling interest" test. This meant that before any action which would place a burden on religious exercise, the government had to demonstrate a "compelling interest" and take any action by using the "least restrictive" means.

* In 1997, the US Supreme Court struck down the Religious Freedom Restoration Act in the historic case of BOERNE v. FLORES. That case involved an effort by the Roman Catholic Church to demolish a historic structure in the town of Boerne, Texas. Local officials in Boerne refused to issue the appropriate permits, citing local historic and preservation ordinances. The Archdiocese of San Antonio sued, citing its coverage under RFRA. In the 6-3 decision, the justices excoriated Congress for exceeding its power by attempting to overrule EMPLOYMENT DIVISION v. SMITH by enacting the Religious Freedom Restoration Act. Justice John Paul Stevens, though, in his opinion in BOERNE said that the act was a violation of the establishment clause of the First Amendment in that it provided the church -- and thus organized religion in general -- with a legal weapon which "no atheist or agnostic" could hope to obtain.

* After the decision in BOERNE v. FLORES, faith groups -- led by the influential Coalition for the Free Exercise of Religion -- developed a two- front strategy, again, trying to reverse their misfortunes. First, they introduced state "mini-RFRAs" in over a dozen states throughout the country, including California. Disingenuously labeled as "religious liberty" or "religious protection" acts, these measures -- essentially crafted by the Coalition and copied from the discredited RFRA -- sought to implement the "compelling interest/least restrictive means" test. And last summer, a "son- of-RFRA" was introduced on Capitol Hill as the Religious Liberty Protection Act. Despite attempts to fast-track RLPA, neither the U.S. House nor the Senate have passed RLPA, and the measure is sure to be a point of contention when legislators head back to the hill in January, 1999.

* Does the Religious Freedom Restoration Act still apply to the states despite the ruling in BOERNE v. FLORES? That remains unclear. The decision in BOERNE has been interpreted by some as a green-light for the passage of local versions of RFRA which have now appeared in over a dozen states. In California, the Religious Freedom Protection Act cleared both houses of the legislature by a wide margin; but Gov. Pete Wilson, citing concerns about how the act would impact the state's penal system, recently announced that he would veto the measure.

RFRA, Unions & Religion-Owned Businesses

So, where does this leave Adventist Health, a church-owned business, and the nurses who wish to unionize? Ukiah Valley Medical Center says that under RFRA, it should be exempt from labor law. An attorney for the California Nurses Association, though, questions "whether RFRA is unconstitutional." The remark is puzzling since BOERNE v. FLORES struck down the Religious Freedom Restoration Act. The Adventists seem to be arguing that while invalid for the federal government, RFRA still operates within the individual states. The Church also announced that it is willing to take its case all the way to the U.S. Supreme Court if necessary in order to stop the unionizing effort at Ukiah Valley.

The danger in the Ukiah Valley situation, though, is that "religious liberty" legislation such as RFRA or RLPA provides a convenient excuse for church-owned hospitals to continue their voracious expansion and conglomeration, all the while ignoring efforts to unionize staff. Enormous sums of money are at stake. For instance, the largest health care provider in California is the San Francisco-based Catholic Healthcare West, formed in 1986. The conglomerate attracted public attention just two years ago when it announced formation of a West Bay region, which linked four CHW hospitals under a single management group. Those four hospitals had 655 active physicians, 4,100 employees and annual revenues of $334.6 million.

With so much money involved, religion-affiliated hospitals and health care companies may have found a new weapon -- "religious liberty." Expect this to be another impetus for passage next year of the Religious Liberty Protection Act.

**

You may forward, post or quote from this dispatch, provided that appropriate credit is given to AANEWS and American Atheists. Edited by Conrad Goeringer, cg@atheists.org. Internet Representative for American Atheists is Margie Wait, irep@atheists.org

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