Introduction and summary
Several decades of consolidation among health care providers have harmed both patients and providers.1 As more hospitals merge or acquire smaller providers, patients are left with fewer choices and are charged higher prices as they experience greater difficulty accessing health services and, potentially, diminished quality of care.2 An overlooked but significant part of this trend has been the growing market power of Catholic health care providers. From 2001 to 2020, Catholic provider growth rate was 28.5 percent. During that same period, the number of non-Catholic hospitals declined by nearly 14 percent.3 By 2020, four of the country’s 10 largest hospital systems—by number of beds—were Catholic, and at least 1 in 6 of America’s hospital beds were in Catholic hospitals.4
Catholic hospitals play an important role in the nation’s health care delivery system and access to obstetrics care in some areas,5 but they also are constrained in ways that most other providers are not.6 Catholic hospitals are governed by the Ethical and Religious Directives for Catholic Health Care Services, guidelines established by the U.S. Conference of Catholic Bishops that restrict the types of care that can be provided in their facilities or by their providers, especially care related to family planning and sexual and reproductive health. This includes contraception, abortion, gender-affirming care, and fertility treatments.7 For example, the directives state that institutions “may not promote or condone contraceptive practices”8 and that “abortion … is never permitted.”9 These directives can be at odds with accepted medical standards according to physicians and other medical practitioners.10
Catholic hospitals have the First Amendment right to issue guidance on ethical standards for Catholic health care institutions. However, growing concentration and market power among Catholic health care systems raises important concerns for women and pregnant people who, as consumers, seek sexual and reproductive health services and have the right to obtain them without interference. These two realities are increasingly in conflict: As Catholic health systems, like other hospital systems, have seen their market power grow, more and more women are encountering barriers to obtaining the care they seek.11
This access problem is especially pronounced in some parts of the country, such as multiple regions of Washington state,12 where, as a result of growing market concentration, Catholic hospitals are now the only option.13 Similarly, in Alaska, Iowa, Washington, Wisconsin, and South Dakota, more than 40 percent of acute care beds are in hospitals operating under Catholic health restrictions.14 These restrictions are followed even in states where abortion rights are protected through state law or constitutional amendments. This has serious implications for women’s health against the backdrop of an increasingly hostile and fragmented reproductive rights landscape.15
When a hospital or health care system is part of a merger or acquisition, the merger sometimes must be reviewed and approved by federal and/or state antitrust regulatory agencies if the transaction meets a certain threshold. Antitrust laws can play a crucial role in protecting and preserving access to reproductive health care in the face of these constraints, as such laws are designed to prevent the accumulation and exploitation of market power that harms consumers.16 Although the First Amendment permits Catholic hospitals to provide care in accordance with their religious dictates,17 antitrust laws should ensure that those dictates do not infringe on a physician’s ability to provide care and on patients who rely on market choice to seek and obtain that care.18 Moreover, antitrust remedies can be used to preserve access to particular service lines even when the merger transactions are otherwise permissible or when the transactions do not meet the threshold value for federal review.19
Unfortunately, antitrust enforcement has not kept up with the rapid growth of provider consolidation. Nor have the antitrust laws been meaningfully employed to preserve access to reproductive health care. This report explores how antitrust laws can preserve access to reproductive care even when other policies work to restrict it, highlighting how enhancing merger review, anti-monopoly scrutiny, and consumer protection standards can advance access to reproductive care. It also recommends state-level transparency measures and proactive involvement from state attorneys general (AGs) that can enhance the antitrust goals of consumer choice and vibrant competition. Finally, the report emphasizes the critical role advocates must play in raising public awareness and pushing for systemic reform to ensure patients’ rights and access to comprehensive health care are protected. The report recommends:
- Strengthening merger review: Enforce Section 7 of the Clayton Antitrust Act to modify or block hospital mergers that reduce competition, including those that eliminate key service lines such as reproductive care.20
- Confronting anticompetitive behavior in employment: Use the Sherman Antitrust Act to target employment policies and contracts that restrict physicians’ ability to provide reproductive care.21
- Promoting transparency: Enforce existing Federal Trade Commission (FTC) consumer protection laws to require hospitals to disclose religious restrictions.
- Empowering state enforcement action: Encourage state attorneys general to enforce antitrust laws to protect access to reproductive care; pass state legislation that requires hospitals to publicly disclose service limitations; and give state attorneys general additional resources and tools to evaluate and monitor hospital mergers for effects on access to reproductive health.
Catholic limitations on care
Catholic hospitals operate according to the Ethical and Religious Directives for Catholic Health Care Services,22 which are promulgated by the U.S. Conference of Catholic Bishops. These directives are intended to guide how Catholic hospitals and providers deliver care and are based on interpretations of the church’s teachings. Yet in practice, the directives prohibit some of the most common reproductive health care services used by women.23 This includes elective contraception such as birth control pills, IUDs, patches, or rings; elective sterilization such as vasectomies and tubal ligations; elective abortions; many forms of infertility treatment; and miscarriage care. The directives only allow lifesaving medical care that has the foreseen but unintended side effect of ending a pregnancy, not to prevent a condition that may put a pregnant person’s life at risk nor to prevent lifelong disability.24
It is important to note that many religiously affiliated hospitals may restrict the types of care available to patients; however, the vigorous growth of Catholic hospitals and health systems poses distinct challenges to sexual and reproductive care given the strict prohibitions. For example, one study of secular, Protestant, and Catholic hospitals in Illinois found that most secular hospitals had few limitations on abortion care, while Catholic hospitals prohibited most abortions and a Protestant-affiliated system banned “elective” abortions.25
Patient impacts: Lack of choice and restrictions on care
Studies suggest that most consumers are not aware that Catholic hospitals and other Catholic health care institutions do not provide a full range of services to patients.26 And even patients who are aware of those restrictions may not know that a hospital they seek care from is Catholic. Roughly 1 in 5 Catholic hospitals in the United States do not explicitly disclose their religious affiliation on their websites, and only a small percentage of those disclose how that affiliation might affect patient care.27
Importantly, although women of reproductive age are most likely to encounter religious restraints on their care, even they experience an awareness gap. A 2018 national survey of women ages 18 to 45 found that more than one-third of respondents who identified a Catholic hospital as their primary hospital for reproductive care were unaware of the hospital’s religious affiliation.28
Roughly 1 in 5 Catholic hospitals in the United States do not explicitly disclose their religious affiliation on their websites, and only a small percentage of those disclose how that affiliation might affect patient care.
Catholic hospitals’ lack of transparency inhibits informed decision-making and can result in patients being denied or delayed access to time-sensitive and sometimes lifesaving care.29 Because many consumers are not aware that some hospitals operate under religious restrictions, they are unable to take this into account when deciding where to go for treatment. This can result in an unexpected denial of care, a delay in care, or even the receipt of substandard care.
For example, offering contraception during a delivery hospitalization helps women with birth spacing30 and is a convenient option for patients during the postpartum period.31 Similarly, many women choose to have a tubal ligation after giving birth to their last child, and having this procedure performed at the time of delivery is often both safer and more convenient than doing so at a later date.32 The directives, however, restrict access to these services. And some pregnant patients may not be told of such restrictions until it is too late, or logistically too challenging, to switch to a new provider.33 Not surprisingly, then, studies show that patients whose closest hospital is Catholic are less likely to receive postpartum surgical sterilizations and more likely to have subsequent deliveries.34
Similarly, when hospitals fail to disclose the existence of religious restrictions, patients who are experiencing a miscarriage may not understand that a particular emergency room will not provide them with the full spectrum of care. In states that provide abortion care, the full range of treatment options for a miscarriage include expectant management, meaning waiting to see whether the body completes the miscarriage without intervention; medication such as misoprostol or Pitocin to speed up the miscarriage process; and surgical removal of the fetus.35 While some women will choose expectant management, others may choose to expedite the process, particularly if the miscarriage is prolonged, their pain is intense, or they do not want to risk developing a life-threatening infection as a result of the miscarriage.36 Yet hospitals operating under the directives permit only expectant management, unless a medical or surgical abortion is necessary to save the patient’s life.37 Because of this, some miscarrying patients have been forced to wait until they developed an infection, while others have been transferred to facilities that would provide abortion care.38
Studies show that patients expect hospitals to be more transparent about the religious restrictions in place,39 yet many report experiencing needless delays in care because they are not told the care they need is prohibited,40 are not receiving necessary medical information,41 and are even losing continuity of care with their trusted providers.42 The consequences of these restrictions can affect patients’ autonomy, care experience, and trust in providers.
Existing antitrust laws do not guarantee access to reproductive health care
While federal and state antitrust laws prevent anticompetitive behavior, they generally do not mandate that entities provide specific services. This means that health care entities are not required to offer reproductive care even when they dominate a regional market. Moreover, both federal43 and state44 conscience refusal laws allow hospitals and health care providers to refuse to offer certain medical services if those services conflict with their religious beliefs. This includes services related to reproductive health and gender-affirming care.45 These refusals can affect patient access, particularly in areas where no alternative providers are available.
These laws are framed as protecting providers’ and institutions’ conscience rights but do not extend the same protections to patients who may be denied care that aligns with their own values or religious beliefs. In many communities, especially where Catholic systems dominate the health care market, this can significantly limit access to essential services.46
Worker impacts: Strain on professionals’ ethical and medical standards
While patients can experience direct harm through the denial of care, physicians and medical staff can also experience distressing professional and ethical conflicts when working within Catholic health care institutions, particularly when they are forced to withhold medically necessary care. Providers working within these systems have reported experiencing moral distress, as they are often forced to document false medical justifications or use other workarounds to provide necessary care.47 Some providers have even reported experiencing humiliation and threats from the hospital leadership for trying to provide medical interventions before allowed by the directives.48
This is especially true for OB-GYNs who work in Catholic facilities. A 2014 national survey revealed that OB-GYNs working in Catholic hospitals were as religiously diverse as those in non-Catholic institutions.49 Unsurprisingly, this diversity often results in ideological and professional tensions, especially when providers are required to follow religious directives that conflict with their medical judgment or ethical standards. In fact, a survey from 2008–2009 found that more than half (52 percent) of OB-GYNs practicing in Catholic hospitals report experiencing conflict with their institution over religiously based policies.50 These tensions most often arise in situations where hospital rules impede the delivery of evidence-based care, such as during obstetric emergencies or when providing contraception or sterilization.51 And these tensions extend to physicians who oppose abortion rights.52
Physicians working in Catholic institutions often describe frustration with institutional bans on procedures such as tubal ligation, even when patients face serious medical risks from future pregnancies.53 Moreover, some hospitals that once had more flexible interpretations of these directives have since tightened enforcement, creating a sense of instability for physicians and confusion for patients.54 Providers have expressed particular concern about how these barriers disproportionately harm women already facing financial or geographic limitations, further compounding existing inequities in access to reproductive care.55
Overall, a system marked by limited choice and low public awareness of limitations on choice not only compromises patient care and autonomy but also places immense strain on health professionals trying to uphold ethical and medical standards in restrictive health care systems.
Some OB-GYNs face institutional restrictions that prevent them from offering referrals to other providers, even when those referrals are medically necessary and professionally required.56 Ethical guidelines in health care emphasize the importance of providing timely referrals when a clinician is unable to offer certain services to avoid jeopardizing patient well-being.57 Yet within Catholic hospitals, referral practices vary widely. In some facilities, administrators quietly allow or overlook referrals for services such as abortion; in others, hospital leadership actively discourages or even prohibits such referrals.58 Physicians may feel compelled to make referrals discreetly or not at all, particularly in cases involving abortion. This leaves patients to find care on their own with fewer options and leaves physicians being caught between their professional obligations and institutional constraints.59
Overall, a system marked by limited choice and low public awareness of limitations on choice not only compromises patient care and autonomy but also places immense strain on health professionals trying to uphold ethical and medical standards in restrictive health care systems.
Rising provider consolidation and Catholic hospital market power
Over the past several decades, the American health care market has experienced extraordinary consolidation in local hospital markets, and recent consolidation trends show that as hospitals grow, they also acquire local physician practices.60 This increase in consolidation has led to fewer choices for patients,61 higher prices, and, frequently, diminished quality of care.
What is health care consolidation?
Health care consolidation occurs when hospitals, clinics, or health care companies acquire, merge, or partner with one another:62
- Horizontal consolidation occurs when a company merges with or buys a similar competitor—for example, when competing hospitals, clinics, or physician practices merge with each other.
- Vertical consolidation occurs when a company buys other elements of the health care system, such as when a hospital acquires an independent physician practice.
Consolidation in health care has happened in nearly every hospital market across the country, with few hospitals now operating independently. According to KFF, there were 1,573 hospital mergers between 1998 and 2017,63 with another 428 hospital and system mergers announced between 2018 and 2023.64 Similarly, the share of community hospitals that are part of a larger health system increased from 53 percent in 2005 to 68 percent in 2022, while the share of physicians working for a hospital or in a practice owned at least partially by a health system or hospital increased from 29 percent in 2012 to 41 percent in 2022.65 As a result, many provider markets today are highly concentrated. In fact, one study found that only one or two health systems controlled the entire market for inpatient hospital care in nearly half (47 percent) of metropolitan areas in 2022.66 A 2025 study found that more than three-fourths (77.6 percent) of physicians work for health systems or other corporate entities.67
One often overlooked aspect of increased health care consolidation has been the accompanying growth of Catholic health care systems. Over the past two decades, the 10 largest Catholic health systems have grown such that they now control or own at least 394 of the country’s 3,360 short-term acute care hospitals, representing a 50 percent increase since 2001.68 In addition, Catholic health systems have expanded beyond the hospital setting. The 10 largest Catholic health systems now also operate at least 864 urgent care centers, 385 ambulatory surgery centers, and 274 physician groups.69
As a result, in 2020, at least 15.8 percent of all short-term acute care hospitals in the United States were Catholic-owned or affiliated with a Catholic system, and 1 in every 6 acute care beds (16.8 percent) was owned by a Catholic facility.70 In some states, these numbers are much higher. In Alaska, for instance, 46 percent of all acute care beds in the state were in a single Catholic hospital in 2020. In Iowa, South Dakota, Washington, and Wisconsin, at least 40 percent of state acute care beds were in hospitals operating under Catholic restrictions.71 And in Colorado, Missouri, Nebraska, Oklahoma, and Oregon, between 30 and 39 percent of hospital beds were in an institution operating under religious restrictions.72 This is consistent with a 2020 study that found that 35 percent of U.S. counties had a high (greater than 20 percent) or dominant (greater than 70 percent) Catholic hospital market share.73
15.8%
of all short-term acute care hospitals were Catholic-owned or affiliated with a Catholic system in 2020
16.8%
of all acute care hospital beds were owned by a Catholic facility in 2020
In some communities, particularly rural communities, Catholic care is the only available option. In 2011, for instance, at least 29 communities in mostly rural areas across the country relied on only a Catholic hospital for most of their care. By 2016, that number increased to 45 communities.74 A 2024 study found that of the 132 U.S. counties in which all available hospitals were faith-based institutions, 118 (89 percent) of those “religious monopolies” were Catholic.75 Notably, some “religious monopoly” counties border other monopoly counties, indicating that local residents may have even greater difficulty accessing certain types of care.76
Increased Catholic hospital consolidation means some communities are seeing a decrease in the number of health care institutions that will provide patients with the full spectrum of care. This is because when Catholic hospitals and systems grow by acquiring secular hospitals, the secular hospital is generally required to cease providing the full range of reproductive health care it had previously made available to the community. Consider one physician’s experience when their hospital was sold to a Catholic system:
Two months ago having a tubal ligation wasn’t a bioethical issue; it was a decision a patient made after consultation with the physician and it got carried out safely and that was what it was. The hospital was sold and all of a sudden this procedure becomes a bioethical issue and I don’t understand why the procedure, which hasn’t changed, the patients, which haven’t changed … all of a sudden now we have to go to a committee that doesn’t even have a gynecological member on it and ask them for permission to do a tubal ligation.77
Community members who were previously able to receive care at a secular hospital must now look elsewhere. While higher-income patients may have the resources to seek care at an alternative facility, this is not always true for lower-income patients or Medicaid beneficiaries who have more limited options.78 As the same physician quoted above noted:
[The decision to stop providing tubal ligations] was terrible because our hospital is the main maternity hospital and our patients … tend to be the lower socioeconomic patients … So you had a situation where if you had insurance, had a job or had money, you could go over across the street and get your tubal done. But if you were, you know, getting Medicaid or if you had [state public insurance], then you didn’t have access to that, and I thought it was a terrible double standard.79
Moreover, in some cases, a merger between a Catholic and secular hospital has meant the total cessation of reproductive health services to a community. For instance, when the only two hospitals in Everett, Washington, merged into a Catholic health system in 1994, all abortion care and some sterilization procedures were eliminated in a city of around 78,998 people.80
This kind of constrained landscape leaves patients with few alternatives, particularly when seeking services such as emergency contraception or abortion. In Wisconsin, about 1 in 12 women in rural counties served solely by Catholic community hospitals reported being turned away from care without receiving their desired reproductive care—in a survey conducted between October 2019 and April 2020.81
Growing Catholic health care market power can also affect access to care indirectly by limiting the number of providers who can provide care at secular facilities. Catholic health systems can restrict what employees do in their free time and prohibit affiliated doctors from providing abortion or other reproductive health care services at other medical facilities. For instance, in 2017, when primary care physician Dr. Kimberly Remski was offered a position with Trinity Health IHA Medical Group, one of the largest physician groups in Michigan, the offer came with an important caveat: She would not be permitted to provide abortion care, even in her free time, when she was off the hospital clock.82 This is because IHA Medical Group merged with Trinity Health—a larger Catholic hospital network—in 2010, and the employer’s contract required all physicians to “provide services in a manner consistent” with the Conference of Catholic Bishops’ directives.83 It was reported that after signing her contract, Dr. Remski received a phone call rescinding the offer because she expressed a desire to work part time at an independent clinic that provides abortion care.
As the reach of Catholic health care systems grows, such employment restrictions can make it difficult, if not impossible, for independent abortion clinics—where most abortions in the United States take place84—to staff their clinics.85 This is particularly true for clinics that are staffed by part-time doctors, which is common among smaller clinics.86
See also
Policy recommendations
Utilize antitrust laws to preserve access to reproductive health care
Antitrust laws, which are designed to prevent the accumulation and exploitation of market power that harms consumers, can play an important role in preserving access to reproductive health care. By engaging in stronger merger review and anti-monopoly scrutiny and applying consumer protection standards, antitrust authorities at the federal and state level can promote access to reproductive health care, thereby ensuring all consumers benefit from the increased choice and lower prices that stem from vibrant competition.
The Federal Trade Commission Act prohibits unfair or deceptive practices affecting consumers, as well as unfair methods of competition;87 Section 7 of the Clayton Antitrust Act prohibits anticompetitive mergers; and the Sherman Antitrust Act prohibits anticompetitive restraints and monopolization. State consumer protection and antitrust laws provide another layer of protection to these federal laws. Each of these legal tools can and should be leveraged to preserve access to reproductive care by preventing or modifying anticompetitive mergers, stopping anticompetitive practices, and promoting greater transparency.
Strengthen merger review
Antimerger laws should consider impacts on hospital service lines
Consumers deserve access to competitive and diverse health care markets that are not unnecessarily concentrated among just a few providers—or among providers who would deny them the full range of legal reproductive health care.
The Clayton Antitrust Act was enacted in 1914 to supplement existing antitrust laws to prevent anticompetitive behavior and curtail monopolies. Regulators’ key tool for promoting competition and preventing consolidation in health care markets is Section 7 of the act, which prohibits mergers and acquisitions that “may be substantially to lessen competition, or to tend to create a monopoly.”88 Section 7 is a potentially powerful weapon for combating mergers that decrease competition and access to care. When evaluating a particular hospital merger, antitrust authorities examine the potential market effects of the merger based on the parties’ existing market shares and relevant markets.89 Enforcers first focus on how the merger will affect hospitals’ ability to negotiate for reimbursements with health insurance companies and then on how the merger is likely to affect quality and service offerings.
Although not all hospital mergers will result in a lessening of competition, mergers that require one hospital to stop providing certain service lines, by definition, lessen competition. Forcing a hospital to shut down service lines, such as reproductive care, not only decreases competition—and therefore output—but also allows other providers in the market to gain market share. And this, in turn, means other providers will have enhanced ability to raise their prices.
Notably, while federal enforcers have not routinely challenged hospital mergers on the basis of distinct service lines, there is precedent for doing so. In 2010, the FTC challenged a merger between two of the four hospital systems in Lucas County, Ohio,90 in part because of its expected impact on the market for obstetrical services.91 The parties to the merger were ProMedica, the county’s dominant hospital provider,92 and St. Luke’s, an independent community hospital. The merger allowed ProMedica to increase its market share to about 60 percent in the market for primary and secondary health care services and 80 percent in the market for obstetrical services. Moreover, the merger reduced the number of hospital systems providing OB services from three—ProMedica, St. Luke’s, and Mercy—to just two, ProMedica and Mercy. Because of this, the FTC chose to analyze the merger’s effect on obstetrics separately when it issued a formal complaint challenging the merger. Although the merging parties argued it was improper for the FTC to focus on obstetrics as a stand-alone market, the 6th U.S. Circuit Court of Appeals disagreed.
Regulators should also consider imposing certain conditions on a merger or acquisition to ensure it does not stifle access to certain service lines. For example, the California attorney general’s office imposed conditions on a merger between Dignity Health and Catholic Health Initiatives, which aimed to create a new health entity called CommonSpirit Health that could have affected reproductive care.93 The conditions included a 10-year requirement that women’s reproductive health services be maintained “at current licensure and designation with the current types and/or levels of services” and a prohibition on discrimination against LGBTQ individuals that would need to be explicitly included in the hospital’s policies and strictly enforced.94
Enforcers should continue to consider the impacts of a proposed merger on distinct service lines. Indeed, failing to distinguish between different service lines could lead enforcers to overlook significant competitive impacts that leave consumers with both higher prices and diminished choice.
Confront anticompetitive behavior in employment
Anti-monopoly laws should prevent Catholic hospitals from stifling reproductive health care access outside of their facilities
The Sherman Antitrust Act, passed in 1890, aims to protect competition by ensuring that individuals and firms do not engage in anticompetitive behaviors that harm the competitive process.95 Section 1 of the act makes it illegal for individuals or firms to enter into agreements that would unreasonably restrain trade.96 For example, it is illegal for two businesses to agree to fix prices or output,97 just as it is illegal for firms to agree to limit the sort of benefits packages they will provide to their employees.98 Section 2, in turn, makes it illegal to gain or attempt to gain monopoly power through anticompetitive means.99 That is, while it is legal to acquire or keep monopoly power by creating a superior product or simply outperforming all other competitors, it is also illegal to engage in behaviors that unfairly impede competition.
Under the right facts, a Catholic hospital’s, as well as any secular hospital’s, use of employment provisions that prohibit physicians from practicing at abortion clinics during their off hours might be challenged as an illegal, anticompetitive restraint under Section 1 and/or an illegal attempt to monopolize under Section 2 because it constitutes anticompetitive “exclusive dealing.”100 Exclusive dealing takes place when one party is willing to deal with another party only if that other party agrees not to work with or sell to anyone else.101
Exclusive dealing arrangements are not automatically illegal.102 In fact, some can be procompetitive.103 But they can also be anticompetitive,104 particularly when the agreement prevents other firms from entering the market or growing. In other words, some exclusive dealing arrangements may be anticompetitive and illegal when they “foreclose” other firms’ ability to compete by cutting off those firms from important suppliers or customers.105 Whether or not a plaintiff can bring a case under sections 1 or 2 of the Sherman Act would depend on how much market power the potential defendant possesses, as well as how much of the relevant market has been “foreclosed.”106
As noted earlier, employment provisions, such as noncompete provisions,107 that prohibit doctors from working at reproductive health clinics can make it very difficult for clinics to employ sufficient staff, particularly clinics that rely on part-time physicians.108 These clinics might be forced to close or decrease the number of patients they can serve. If this is the case, then a patient may credibly argue that the Catholic hospital system in their community has substantially foreclosed the supply of physicians available to health care facilities providing reproductive health care, thereby harming competition and decreasing consumer choice.
Promote transparency
FTC consumer protection laws should treat noncompliance with religious disclosure as an unfair or deceptive marketing practice
All consumers should be able to make an informed decision when it comes to seeking out and receiving health care. If a health care institution or provider wishes to only provide medical care in accordance with their own religious beliefs, consumers have the right to know that ahead of time and the right to choose another provider should they wish. This legal architecture protects consumers from the unnecessary denial of services and fosters more efficient competition in the health care market. In practice, however, most health care institutions operating under religious restrictions fail to disclose such restrictions to patients ahead of time.109
One way to promote transparency in reproductive health markets is for federal enforcement authorities to challenge a Catholic hospital’s failure to disclose religious restrictions on care under the FTC Act.110 The FTC Act is the primary law that gives the FTC the power to protect consumers from unfair business practices.111 Section 5 of the act allows the commission to prevent unfair methods of competition and unfair or deceptive acts that would harm consumers.112 “Deceptive” practices are defined as those involving a material representation, omission, or practice that is likely to mislead a consumer acting reasonably in the circumstance,113 while an act or practice is considered “unfair” if it “causes” or is likely to cause substantial injury to consumers that is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to competition.”114
Enforcers should argue that a hospital that fails to clearly disclose religious restrictions on care ahead of time is engaging in an unfair or deceptive practice that leads to consumer harm and has no countervailing procompetitive justification.115 In other words, there would be no benefit to competition or to the consumer that would compensate for or outweigh the possible harms from this lack of disclosure. Failing to disclose religious restrictions is deceptive because it involves a material omission that is likely to mislead a consumer acting reasonably in the circumstances; most consumers do not expect their health care providers to bring religious doctrine into the operating room. If patients did expect it, they might well choose to seek care elsewhere, as research has found that most people believe that their personal choices about their health should have priority over a health care facility’s religious affiliation.116
Similarly, failing to disclose religious restrictions is “unfair” because it is likely to cause substantial injury to consumers that is not reasonably avoidable and not outweighed by countervailing benefits to competition. If patients cannot distinguish between hospitals that operate under religious restrictions and those that do not, they cannot determine which hospital would be willing to provide them the full range of care. This can lead patients to experience delayed care, denial of care, or even substandard care. For instance, a woman experiencing a miscarriage who unknowingly presents at a Catholic hospital may be forced to wait until she develops a severe infection before she can receive a medical or surgical abortion. In other cases, women who planned to have a tubal ligation at delivery may not be informed that is not possible until it is too late to switch doctors. Yet if hospitals were transparent about such restrictions on care ahead of time, patients could self-select away from the institution.
Importantly, failing to inform patients of the conditions under which they will receive care does not increase competition or provide benefit to consumers in any meaningful way.
Empower state enforcement action
State laws can promote transparency
As noted above, a hospital’s failure to disclose religious restrictions on care in advance to consumers may constitute as a deceptive or unfair practice under the FTC Act. However, because the statute does not provide a private right of action, enforcement authority lies exclusively with the FTC,117 an executive agency.118 As such, the likelihood of the FTC pursuing these claims in defense of reproductive health care is low during the current Trump administration.119 Fortunately, however, most states have also enacted their own consumer protection laws prohibiting unfair or deceptive acts or practices (UDAPs). And many of these laws allow consumers to bring civil actions for damages and other forms of relief.120 Individual consumers, health care advocacy groups, and state enforcers should therefore consider incorporating UDAP suits into their strategic plans for promoting and protecting reproductive health.
In addition, state legislators can adopt legislation to promote transparency. Washington state, for instance, began requiring health care providers who object to a procedure on religious grounds to post their policies on their websites “where it is readily accessible to the public, without requiring a login or other restriction” in 2019.121 And in 2023, Colorado passed a law requiring hospitals to post online publicly what services they do not provide—and to inform patients of their policies at the time of appointment scheduling.122
State attorneys general can step up state merger enforcement
State AGs and other state-level regulators can play an important role in protecting reproductive health care markets by conducting their own reviews of proposed mergers within the state, in cooperation with or in addition to any federal investigation. In fact, state-level AGs are arguably best positioned to understand the market realities of the health care markets in their state and to truly understand the potential effects of a proposed transaction.
If they believe that a potential transaction is likely to reduce access to reproductive health care, state AGs should challenge the transaction under Section 7 of the Clayton Act and/or relevant state laws. For instance, in 2019, California Attorney General Xavier Becerra rejected a proposed merger between Adventist Health System/West and St. Joseph Health System, in large part over concerns that the transaction would reduce the accessibility of health care services to the community.123 During the public review process, Becerra received comments from various consumer and patient rights groups expressing concern that the merger would lead to a reduction in services, particularly reproductive services.124
State policymakers can also pass legislation that would bolster the ability of attorneys general to protect access to services in the merger context. For instance, in 2024, the Washington State Senate passed S.B. 5241, sponsored by then-state Sen. Emily Randall (D), to require hospital systems seeking approval for a proposed merger to detail the ways in which that merger might affect access to reproductive, gender-affirming, emergency, charity, and end-of-life care.125 Under the proposed bill, the attorney general would have also had the power to monitor any approved transaction for at least 10 years to ensure that access to care was not disrupted. State senators introduced a similar bill in 2022: S.B. 5688/H.B. 1809, also sponsored by Sen. Randall.126
Finally, state AGs can leverage their existing authorities to protect reproductive health. For instance, at least 35 states require hospitals, health systems, physician groups, and/or private equity firms to notify authorized state entities of certain proposed mergers.127 California once again is a good example: State law requires that nonprofit sellers of health care facilities provide notice to and obtain the consent of the state’s AG in connection with a sale of its assets or a transfer of control to a buyer.128
Advocates can raise awareness and rally for change
Apart from filing lawsuits, health care advocates can press state policymakers to preserve competition and access to reproductive health care.
For instance, in 1997, community organizers in New York successfully defeated an attempt to merge three hospitals in the mid-Hudson River Valley region, which, if successful, would have required the two secular hospitals to cease offering abortions, sterilizations, and contraceptive counseling and services.129 Local community members held rallies, obtained 10,000 signatures on petitions, put up lawn signs, and testified before state regulatory bodies.130 This momentum caught the attention of the FTC, which began investigating the merger in 1998.131 Local advocates worked with staff at the FTC’s New York regional office and provided the agency with on-the-ground information regarding the likely competitive effects of the merger.132 Ultimately, likely in large part due to the public opposition, the merger fell apart.133
Similarly, residents of Brooklyn, Connecticut, fought off a proposed merger between Day Kimball Healthcare and Catholic-run Covenant Health by picketing, writing letters to state officials,134 and obtaining an independent analysis examining the potential impacts of the merger.135 Again, the merger ultimately failed, and despite the hospitals’ assertion to the contrary, this was likely in part due to community opposition.136
These community successes required local leaders and advocates to recognize the threat a potential merger posed to reproductive health care access. As discussed, however, most Americans are not aware that hospitals can impose religious beliefs on patients.137 Health care advocates attuned to this issue, therefore, have an important role in raising community consciousness with respect to potential religious restrictions on care, what those restrictions might mean for patients who present at those hospitals, and how access lost due to increasing hospital consolidation should be a priority for ensuring everyone in the community can access the care they need.
Conclusion
As hospital systems, and especially Catholic hospitals, continue to consolidate, it is critical that all patients retain meaningful access to comprehensive sexual and reproductive health care. Antitrust and consumer protection laws are powerful tools that are currently underutilized in preventing market concentration from further limiting choice, raising prices, and restricting care. These laws must be enforced, not just to preserve competition in theory but to protect people’s ability to make their own personal health care decisions. Enforcing antitrust laws, promoting transparency, and empowering state actors and communities to challenge harmful mergers can help ensure that reproductive health care remains accessible to everyone, regardless of geography.
Acknowledgments
The authors would like to thank Kate Kelly, Marquisha Johns, Lauren Taylor, Brian Keyser, and Emily Gee for their reviews of and contributions to this report. The authors would also like to thank Catholics for Choice for their feedback along the way.