Many of VA’s treatment programs . . . bring the spiritual components of faith and God’s grace to bear on treatment.”
The Freedom From Religion Foundation’s challenge of the pervasive integration of “spirituality” into all aspects of health care by the Department of Veteran Affairs is now before the 7th U.S. Circuit Court of Appeals in Chicago.
The case promises to be the first to duke out the parameters of taxpayer rights to sue, following the Supreme Court’s chilling ruling narrowing standing rights in June.
The Foundation charges that the VA is not only operating the largest healthcare system, but is now “the nation’s largest pervasively faith-based provider.”
The case is the Foundation’s biggest challenge to date of a faith-based government program. The VA is the largest provider of health care in the United States, with a budget of more than $30 billion, serving a nationwide network of more than 157 hospitals, 870 outpatient clinics, 134 nursing homes and other centers.
Although a federal judge ruled against the Foundation in January, the decision did not contest the Foundation’s factual charges:
“The Court finds that all aspects of VA’s chaplaincy program being challenged by plaintiffs do integrate religion and/or spirituality at some level. The Court does not believe that defendants could candidly argue otherwise,” wrote Judge John Shabaz in his January 8 decision.
The standing of the Foundation’s three taxpayer plaintiffs to challenge the pervasive violation was not contested or even raised by the government at the district court level.
The Supreme Court ruled in June in Hein v. the Freedom From Religion Foundation that taxpayers could not challenge state/church violations set up by the executive rather than legislative branch. Following Hein, the federal government belatedly challenged the right of the Foundation plaintiffs to continue the VA lawsuit.
In addressing the standing challenge, attorney Richard Bolton noted that the Hein decision actually “confirms the standing of taxpayers to object to the unconstitutional use of tax appropriations in the administration of a Congressional spending program.”
The federal taxpayers are Foundation co-presidents Dan Barker, Annie Laurie Gaylor, and president emerita Anne Nicol Gaylor.
They and the Foundation are suing VA Secretary R. James Nicholson; Undersecretary for Health Jonathan Perlin, M.D.; the director and deputy director of the National Chaplain Center and the program manager of the VA’s Spiritual Health Initiative.
The lawsuit charges that the VA “provides pastoral services not as an accommodation to veteran’s free exercise rights,” but because it “deems pastoral services for all patients, including veterans receiving outpatient medical services, to be a necessary part of medical treatment.”
The VA encourages all patients “to tap into their alleged spiritual resources of faith,” with VA chaplains involved as “part of the treatment team for all patients.”
A VA medical center completes a Spiritual Assessment for every patient, which is entered in the patient’s medical record following admission to the medical center.
The VA now automatically provides chaplain services to outpatients, who make up 80% of patients, and whose religious needs do not require the accommodation offered to hospital-bound patients.
Judge John Shabaz ruled that the integration of religion and “spirituality” into all aspects of medical care is permissible because it is ostensibly “voluntary.” The Foundation contends in its brief before the 7th U.S. Circuit that coercion is not necessary to show an Establishment Clause violation.
Shabaz also posited that the provision of pastoral care to outpatients is constitutionally permissible because of its alleged therapeutic value.
Shabaz further ruled that the VA’s treatment programs are “bringing the spiritual components of faith and God’s grace to bear on treatment.”
As Shabaz wrote:
“First, as part of its clinical chaplaincy focus the VA believes that the spiritual dimension of health must be integrated into all aspects of patient care. Additionally, VA requires that all chaplains must be ecclesiastically endorsed by a particular faith tradition. Further, spiritual assessments currently in use by the VA system ask explicitly religious questions such as ‘What is your religious preference?’ . . .
“Next, VA chaplains provide spiritual care and counseling to outpatient veterans whose free exercise rights are arguably neither burdened nor restrained because VA believes that holistic health care and spiritual and religious needs go ‘hand-in-hand.’ Finally, many of VA’s treatment programs integrate religion and/or spirituality into their protocol by: (1) using Lament and Faith Development, (2) teaching the Twelve Steps of Alcoholics Anonymous; or (3) bringing the spiritual components of faith and God’s grace to bear on treatment.”
The judge quoted the VA policy that when “God’s gift of spiritual faith and grace is applied, it is good medicine.”
In its brief filed before the appeals court on Aug. 27, 2007, the Foundation addressed both the merits of the case, and the newly-raised standing issue.
The Spiritual Assessment Inventory recommended by the VA includes a scoring index, whereby a “score on the Religious Resource Index of 15 or lower indicates that the patient should be referred to Chaplain Service.”
The lawsuit documents numerous examples of the spiritual inventories and invasive religious questions, a practice recently extended to outpatients. For instance:
- The VA Medical Center in Bath, N.Y., advises patients that the center “believes that faith plays an important role in a person’s sense of health and wellness.”
- Dayton VA Chaplain Nancy Dietsch seeks to develop a “faith and understanding of God” by each patient, using a lament address to God as a form of prayer. Chaplains provide an assessment as to whether a patient is functionally impaired, moderately spiritually functional, or spiritually impaired.
- The Sheridan Medical Center employs a Spiritual Recovery Support Group as an intervention program for veterans who are identified as having “significant spiritual injuries,” as measured by a Multi-Level Spiritual Assessment. The program utilizes “the idea that God sees them [veterans] of infinite worth and value, and that God wants them to treat themselves with His grace and mercy as His precious child.” The Foundation brief points out that the mandate to provide health care services to veterans is funded by Congressional appropriations administered by the Veterans Health Administration, which includes VA chaplains.
“The alleged misuse of such funds to promote religion in the administration of a Congressional social welfare program can be challenged by taxpayers,” noted attorney Richard Bolton in the Foundation brief.
“VA chaplains obviously perform religious activities, which they can do to a limited extent to accommodate the constitutional Free Exercise rights of hospitalized patients. Accommodation, however, is not a carte blanche to promote religion without restraint . . . .
“Constitutional limits on VA chaplains prohibit activities intended to promote religion over nonreligion.”
The brief continues:
“VA chaplains cannot constitutionally assess the religious characteristics of veteran patients, any more than legislative chaplains can constitutionally perform spiritual assessments of legislators. VA chaplains cannot constitutionally design, implement and promote religious treatment programs that inculcate religious indoctrination. VA chaplains cannot constitutionally provide outreach religious services to non-hospitalized patients whose Free Exercise rights are not burdened,” or purposefully promote “religion as a health benefit.”
Health care benefits, including pastoral and spiritual care, provided to veterans by the VHA are funded by annual Congressional appropriations, which total $37.1 billion for YR 2008. This amount includes $29 billion for medical services administered by the VHA, which is funded through multiple Congressional appropriation accounts from Congress.
The clinical chaplaincy is mandated by the VA, with spiritual assessment tools provided to VA medical centers through the VA National Chaplain Center.
In comparison, Hein challenged general appropriations by the Executive Branch to fund its day-to-day activities. In Hein, the Supreme Court ruled that Foundation taxpayers could not challenge the creation and funding of the individual federal faith-based offices, which serve as propagandists for the faith-based initiative. The court in Hein ruled that taxpayers continue to have the right to challenge a specific Congressional spending program.
“Nothing in Hein suggests that the Supreme Court meant to exclude major Congressional spending programs, including health care, from Constitutional scrutiny. The appellants’ standing in this case, previously unchallenged, falls squarely within the bounds of the Supreme Court’s holding in Flast v. Cohen, Bowen v. Kendrick and Hein,” wrote Bolton.
The government’s argument that faith-based health services are beneficial to all veterans “would justify direct public funding of religious services in virtually any context where a sincere belief exists in the utility of religion to help achieve desirable social outcomes.
“The VA would provide ‘cradle-to-grave’ chaplaincy, if possible,” the Foundation brief stated.
As a result of the VA’s programmatic incorporation of religion into medical treatment, VA hospitals have effectively become sectarian facilities, rather than medical facilities that also make pastoral care available.
