Volume 109

Severability First Principles

The United States Supreme Court has decided a number of cases involving severability in the last decade, from NFIB v. Sebelius and Murphy v. NCAA to Seila Law v. CFPB, Barr v. AAPC, United States v. Arthrex, California v. Texas, and Collins v. Yellen. The analysis has not been consistent, the Justices have not been able to agree, and the results have not been intuitive. Some of the Justices have proposed a revisionist approach, but they too have been unable to agree on what it requires.

This Article proposes a return to first principles. Severability is a question of what the law is. Severability also includes two principles of constitutional law: that judges should enforce the law, and that the Constitution displaces ordinary law that is repugnant to it. And it also includes principles of non-constitutional law: that validly enacted statutes are law if they are not repugnant to the Constitution, that unenacted hopes and dreams are not, and that Congress may legislate for contingencies.

Much of the time, these principles lead to a simple bottom line: effectively complete severability, rebutted only by an inseverability clause or something else with the force of law. There are also harder cases where the bottom line is not so simple, but where the first principles of severability will nonetheless lead the way—the relevance of unconstitutional removal restrictions, the non-constitutional law that resolves unconstitutional combinations, and the relevance of severability to standing and other procedural questions.

Introduction

When part of a statute is unconstitutional, the courts engage in severability analysis. According to the cases, this analysis couples a presumption with a possible rebuttal. The presumption is one of severability: “[T]he invalid part may be dropped.”1 1.Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987) (quoting Buckley v. Valeo, 424 U.S. 1, 108 (1976) (per curiam)).Show More The presumption is rebutted based on either an objective analysis, asking whether “what is left is fully operative as a law,”2 2.Id. (quoting Buckley, 424 U.S. at 108).Show More or a subjective analysis, asking whether “it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not.”3 3.Id.Show More Slightly more controversially, the same seems to be true for a single provision with constitutional and unconstitutional applications.4 4.Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320, 328–29 (2006).Show More

There have been many calls to abandon or reform severability doctrine.5 5.See, e.g., Murphy v. NCAA, 138 S. Ct. 1461, 1487 (2018) (Thomas, J., concurring) (“[O]ur modern severability precedents are in tension with longstanding limits on the judicial power.”); Kevin C. Walsh, Partial Unconstitutionality, 85 N.Y.U. L. Rev. 738, 742 (2010) (calling for a “displacement-based approach”); Tom Campbell, Severability of Statutes, 62 Hastings L.J. 1495, 1497 (2011) (proposing a “complete abolition of the severability doctrine”); Lisa Marshall Manheim, Beyond Severability, 101 Iowa L. Rev. 1833, 1838 (2016) (advocating for the replacement of severability with a broader inquiry into legislative intent).Show More But there is no consensus about what the problem is or what to do instead. At least one problem, though, is methodological: the modern approach to statutory interpretation is heavily influenced by formalism generally and textualism specifically. Such judges have extra reason to be skeptical of current doctrine. They doubt the coherence or the relevance of counterfactual inquiries into legislative intent and also tend to resist the normative analysis that sometimes lies behind particular severability arguments. And severability can look uncomfortably like “rewriting” a statute, which most judges today know they are not supposed to get caught doing. So, we need an account of severability that makes formal sense.

This is a natural occasion for a return to first principles, and some have tried. Several recent articles make promising contributions,6 6.Especially noteworthy are Walsh, supra note 5; John Harrison, Severability, Remedies, and Constitutional Adjudication, 83 Geo. Wash. L. Rev. 56 (2014); and Jonathan F. Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933 (2018).Show More and recent opinions by Justices Thomas and Gorsuch have attempted to synthesize them into a new revisionist account of severability.7 7.See infra Section II.B.Show More But their work is incomplete. Justices Thomas and Gorsuch cannot even agree among themselves in several recent cases, and throughout they may be trying to squeeze more certainty out of the literature than it can supply. We still need a clearer account of the first principles that answer the severability problem and of what those principles do and do not imply.

Returning to first principles also requires us to determine whether severability analysis comes from the Constitution or instead from statutory interpretation or other non-constitutional law. In truth, it is both. Severability principles are a combination of both constitutional and non-constitutional law. The Constitution tells us that it displaces ordinary law that is inconsistent with it. It also tells us that judges (among others) are supposed to apply the law. But these constitutional principles are not all there is to severability. We also need to know what is the law, when some part of a statute has been found to be constitutionally repugnant? Ordinary principles of statutory interpretation fill in this answer. Federal law is what has been enacted by Congress and not otherwise displaced, including any fallback law. And, of course, any non-federal legal rules also continue to apply.

Much of the time, these principles lead to a simple bottom line: judges should enforce a statute except in the specific cases where its application is unconstitutional. But this simplicity is deceptive. The bottom line becomes more difficult to see in the case of unconstitutional combinations: when two statutory requirements are unconstitutional if taken together, which one should be disregarded? These difficult cases—more widespread than many realize—illuminate an aspect of the Constitution that has been there all along: the Constitution tells us what the law isn’t, but not always what it is. Solving the severability problem in these cases—saying what the law is—requires going beyond the text of the statute, whether formalist judges like it or not.

Other difficulties come up in the context of standing and other threshold questions. When can a plaintiff establish standing on the basis of an inseverability argument, and when can a severability argument defeat standing? These questions have proven difficult for the courts, but this time it is the difficulty that is deceptive. Once we straighten out our severability analysis, it drives us to straightforward answers in these cases.

This Article puts forward the first principles of severability and then applies them, first to the easy cases and then to the hard ones. Part I argues that severability is a question of law; that the Constitution displaces repugnant law; and that all non-repugnant law should be enforced, including fallback law such as severability and inseverability clauses. Part II describes how these principles would reframe severability doctrine, how Justices Gorsuch and Thomas have come close to restating these principles, and how the principles also clarify facial challenges and national injunctions. Part III tackles the harder cases, such as unconstitutional combinations and severability procedure.

  1. Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987) (quoting Buckley v. Valeo, 424 U.S. 1, 108 (1976) (per curiam)). ↑
  2. Id. (quoting Buckley, 424 U.S. at 108). ↑
  3. Id. ↑
  4. Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320, 328–29 (2006). ↑
  5. See, e.g., Murphy v. NCAA, 138 S. Ct. 1461, 1487 (2018) (Thomas, J., concurring) (“[O]ur modern severability precedents are in tension with longstanding limits on the judicial power.”); Kevin C. Walsh, Partial Unconstitutionality, 85 N.Y.U. L. Rev. 738, 742 (2010) (calling for a “displacement-based approach”); Tom Campbell, Severability of Statutes, 62 Hastings L.J. 1495, 1497 (2011) (proposing a “complete abolition of the severability doctrine”); Lisa Marshall Manheim, Beyond Severability, 101 Iowa L. Rev. 1833, 1838 (2016) (advocating for the replacement of severability with a broader inquiry into legislative intent). ↑
  6. Especially noteworthy are Walsh, supra note 5; John Harrison, Severability, Remedies, and Constitutional Adjudication, 83 Geo. Wash. L. Rev. 56 (2014); and Jonathan F. Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933 (2018). ↑

  7. See infra Section II.B. ↑

Property’s Boundaries

Property law has a boundary problem. Courts are routinely called upon to decide whether certain kinds of things can be owned—cells, genes, organs, gametes, embryos, corpses, personal data, and more. Under prevailing contemporary theories of property law, questions like these have no justiciable answers. Because property has no conceptual essence, they maintain, its boundaries are arbitrary—a flexible normative choice more properly legislative than judicial.

This Article instead offers a straightforward descriptive theory of property’s boundaries. The common law of property is legitimated by its basis in the concept of ownership, a descriptive relationship of absolute control that exists outside of the law. Ownership’s limits thus lie at the limits of absolute control—that which cannot in principle be the subject of human dominion cannot be owned. In short, this Article both offers a comprehensive explanation for why a conceptual theory of property’s limits matters and how one can be possible, and defends a substantive theory of the concept of ownership as control.

Under this theory, cells, organs, gametes, embryos, and corpses can be owned. But information—like genes and personal data—that cannot be controlled cannot be owned. Viewed through this lens, intellectual property—a challenge for any theory of property that appears to entail ownership in information—can be understood either as a statutory analogy or a rough approximation of the real but temporary control of information exercised by those who create or discover it.

Introduction

In October 2021, the estate of Henrietta Lacks sued Thermo Fisher Scientific.1 1.Civil Complaint & Request for Jury Trial, Lacks v. Thermo Fisher Sci. Inc., No. 1:21-cv-02524 (D. Md. filed Oct. 4, 2021) [hereinafter Lacks Complaint].Show More The underlying facts are by now well-known.2 2.See generally Rebecca Skloot, The Immortal Life of Henrietta Lacks (2010) (summarizing the Henrietta Lacks story).Show More On February 5, 1951, Ms. Lacks sought treatment for cervical cancer at Johns Hopkins Hospital.3 3.Lacks Complaint, supra note 1, at 2.Show More In the course of her treatment, physicians removed, without her consent, a portion of her tumor for research.4 4.Id.Show More The cells were found to have a stunning quality—they reproduced indefinitely outside the human body.5 5.Id. at 3.Show More For the first time, scientists could conduct research on mass-produced human cells.6 6.Id.Show More This cell-line, known as “HeLa” after its source, underwrote the biotechnology revolution and the immeasurable profits of companies—including Thermo Fisher—that have intellectual property in HeLa cells.7 7.Id. at 3–4.Show More But Ms. Lacks, who died shortly after the operation, never knew any of this, and her family has never legally owned any part of the HeLa cell line. This, the Lacks family’s complaint alleges, was “theft”—“this genetic material was stolen from Ms. Lacks.”8 8.Id. at 12. Although rhetorically describing the incident as “theft,” the complaint sounds in unjust enrichment. Id. at 12–13. Unjust enrichment is an equitable remedy whereby a plaintiff is entitled to the gains of a defendant “enriched by misconduct and who acts . . . with knowledge of the underlying wrong.” Restatement (Third) of Restitution and Unjust Enrichment § 51(3) (Am. L. Inst. 2011). It seems that the plaintiffs have three distinct theories of the underlying “wrong”—(1) “theft,” Lacks Complaint, supra note 1, at 12; (2) “assault,” id. at 5; and (3) violation of privacy, id. at 4. This Article only touches on the legal plausibility of the first—whether or not a claim for unjust enrichment on the basis of conversion is plausible. Lacks’s claim based on assault or violation of privacy remains independently plausible.Show More

The plaintiffs face an uphill battle convincing the court that Lacks’s doctors stole her cells. In the famous case Moore v. Regents of the University of California, the Supreme Court of California rejected a similar claim for conversion by a plaintiff whose spleen was used for research without his consent. The court observed the law “deal[s] with human biological materials as objects sui generis,” not subject to the “general law of personal property.”9 9.793 P.2d 479, 489 (Cal. 1990).Show More Human biological materials, the court suggested—organs, cells, gametes, and more—cannot be owned.10 10.Id. (“[T]he laws governing such things as human tissues, transplantable organs, blood, fetuses, pituitary glands, corneal tissue, and dead bodies deal with human biological materials as objects sui generis, regulating their disposition to achieve policy goals rather than abandoning them to the general law of personal property.” (footnotes omitted)).Show More

But why? After all, many people (maybe most) feel that they own their cells and genetic material, and that Henrietta Lacks owned hers.11 11.See, e.g., Barbara J. Evans, Barbarians at the Gate: Consumer-Driven Health Data Commons and the Transformation of Citizen Science, 42 Am. J.L. & Med. 651, 659 (2016) (revealing that in a 2014 survey on personal health data, only thirteen percent of respondents were agnostic to the question of ownership).Show More Others disagree.12 12.See, e.g., Henry H. Heng, HeLa Genome Versus Donor’s Genome, 501 Nature 167, 167 (2013) (“I contend that the continual divergence of chromosomal features (‘karyotype’) and DNA sequence in dynamic cancer-cell populations undermines debate over ownership of the HeLa cancer-cell line derived from Henrietta Lacks six decades ago.”).Show More Debates in the public sphere like this—about the boundaries of property law, about whether a kind of thing can be owned—are hardly limited to Henrietta Lacks and immortal cell lines. Indeed, we debate and litigate the ownership of organs,13 13.See, e.g., B. Björkman & S.O. Hansson, Bodily Rights and Property Rights, 32 J. Med. Ethics 209, 209 (2006) (“An underlying issue in these discussions is whether various types of biological material can be owned.”).Show More tissue samples,14 14.See, e.g., Shannon Cunningham, Kieran C. O’Doherty, Karine Sénécal, David Secko & Denise Avard, Public Concerns Regarding the Storage and Secondary Uses of Residual Newborn Bloodspots: An Analysis of Print Media, Legal Cases, and Public Engagement Activities, 6 J. Cmty. Genetics 117, 124 (2015) (“Across the public engagement activities we reviewed, numerous participants stated that parents have a right to retain ownership of their child’s blood samples and control over who has access to the specimens.”).Show More genetic information,15 15.See, e.g., Jon F. Merz & Mildred K. Cho, What Are Gene Patents and Why Are People Worried About Them?, 8 Cmty. Genetics 203, 203 (2005) (noting that “[n]umerous ethical concerns have been raised about the effects of [gene] patents on clinical medical practice as well as on research and development,” although “[n]early 30,000 human genes have been patented in the US”).Show More gametes and embryos,16 16.See, e.g., Radhika Rao, Property, Privacy, and the Human Body, 80 B.U. L. Rev. 359, 414 (2000) (“Courts appear utterly confused as to how to classify these objects, characterizing sperm and embryos variously as property, quasi-property, or not the subject of property rights at all but governed instead by precepts of privacy.”); see also Hecht v. Superior Court, 16 Cal. App. 4th 836, 850 (1993) (holding that a decedent “had an interest, in the nature of ownership,” permitting sperm to be bequeathed); David Horton, Indescendibility, 102 Calif. L. Rev. 543, 580–81 (2014) (discussing the extent to which Hecht supports the existence of property rights in sperm).Show More corpses,17 17.See, e.g., Ray D. Madoff, Immortality and the Law: The Rising Power of the American Dead 16–17 (2010).Show More digital data,18 18.See, e.g., David A. Dana & Nadav Shoked, Property’s Edges, 60 B.C. L. Rev. 753, 761 (2019) (“[O]ver the past few months, popular and legislative disputes over privacy on the Internet and the allocation of rights to information between users, websites, and providers[] have likewise extensively employed—somewhat thoughtlessly—the boundary-focused terms supposedly derived from traditional property law.”).Show More and much more. These debates arise whenever value is discovered within—or technology makes it possible to capture value in—something new.19 19.See, e.g., Meredith M. Render, The Law of the Body, 62 Emory L.J. 549, 569 (2013) [hereinafter Render, The Law of the Body] (noting that “when conditions are ripe—when we discover something new (or something that is useful in a new way) that is also ‘ownable’—our concept of property bends to accommodate the new entity”); Abraham Bell & Gideon Parchomovsky, A Theory of Property, 90 Cornell L. Rev. 531, 563 (2005) (“As society changes, the value derived from different assets is transformed, and therefore the objects of property law will change over time.”).Show More

Courts presented with these kinds of questions need a theory of property’s boundaries. But they would search largely in vain for one in contemporary property theory. Indeed, conventional legal wisdom has it that there are no conceptual answers to what can be owned.20 20.See, e.g., Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv. L. Rev. 1089, 1089–93 (1972) (arguing that society chooses to protect entitlements with “property rules” or “liability rules” in order to maximize welfare); Jessica L. Roberts, Progressive Genetic Ownership, 93 Notre Dame L. Rev. 1105, 1159–60 (2018) (arguing that the state should recognize individual ownership of genetic information because doing so would maximize human flourishing under Roberts’s pluralistic theory of human flourishing).Show More Instead, the law of property is widely understood to be an arbitrary “bundle of sticks”—a collection of rights and responsibilities designed to achieve exogenous social goals, not a coherent concept with determinable boundaries.21 21.See, e.g., Abraham Bell & Gideon Parchomovsky, Reconfiguring Property in Three Dimensions, 75 U. Chi. L. Rev. 1015, 1015 (2008) (“As any first-year student knows, modern theorists have savaged the idea of ‘absolute dominion’ and tend, instead, to view property as a ‘bundle of rights,’ . . . .”).Show More From this perspective, the question of what can be owned is a normative one. It is necessarily coterminous with questions about what should be owned, who should own what, and how ownership ought to be regulated.22 22.Cf. J.E. Penner, The Idea of Property in Law 106 (paperback ed. 2000) (“For most philosophers, the actual objects of property are uninteresting, and the real meat of the question about property is how we can justify unequal holdings.”).Show More In our system of popular sovereignty and separation of powers, these questions are inappropriate for judicial resolution. If the conventional legal wisdom is correct, we would need to adopt by statute a code of property’s boundaries.23 23.See infra Section II.A.Show More

This Article, in contrast, argues that the concept of ownership—which exists outside the law and from which the common law of property derives its legitimacy—offers a descriptive, properly judicial theory of the boundaries of property law. Ownership is a relationship characterized by absolute control, and it cannot exist where a person could not in principle exercise absolute control over something.24 24.See infra Section III.A.Show More This means that ownership can properly apply to anything over which control can in principle be exercised, but not to those things that it cannot be.25 25.See infra Part IV.Show More

This distinction illuminates many public and legal controversies about ownership. On the one hand, because it can be subject to absolute control, human biological matter—from organs and corpses to cells and embryos—can be owned.26 26.See infra Section IV.A.Show More We control, and therefore own, our bodies and their constituents. On the other hand, information that is in principle accessible to anyone and cannot be manipulated cannot be owned.27 27.See infra Section IV.B.Show More This means that human genetic information and personal data are not ownable. In cases such as Lacks’s, the theory tells us that when Ms. Lacks walked into the clinic for treatment, she owned the cells of her tumor.28 28.See, e.g., Thomas W. Merrill & Henry E. Smith, Property: Principles and Policies 57 (3d ed. 2017) (“[A]mong the ways that ownership can get started is for someone to possess a thing for the first time with the requisite intent.”).Show More But that is of course not really what her claim of theft is about.29 29.At least, it’s not what the rhetoric of the lawsuit is about. It is in fact possible to have a claim for unjust enrichment even if the only thing Lacks owned were her cells ab initio, as the derivation of the metaphysically distinct HeLa cell line may have been premised on the underlying wrong.Show More It’s the HeLa cell line—not Lacks’s cancer cells—from which the biotechnology companies have profited. HeLa is not metaphysically identical to Lacks’s cancer cells—what they share is genetic information.30 30.See generally Heng, supra note 12.Show More Because information, genetic or otherwise, cannot be owned, Lacks’s estate has never owned the HeLa line.

The theory of property’s boundaries offered in this Article is descriptive, not normative. It is a theory of the entailments of ownership as the concept actually exists outside the law, not a claim about whether the outcomes it suggests are good or bad, or whether we ought to have a common law of property organized around the concept of ownership in the first place. As such, the theory is entirely compatible with the possibility that people like Ms. Lacks have remedies in other areas of law—privacy, informed consent, or intentional torts, most prominently.31 31.Indeed, in Moore, the court held that Moore had stated a claim for breach of informed consent after dismissing Moore’s claim for conversion. See Moore v. Regents of the Univ. of Cal., 793 P.2d 479, 497 (Cal. 1990).Show More Indeed, it is also entirely legitimate for legislatures to codify structures analogous to ownership by statute (as discussed below, this is one way to understand intellectual property).32 32.See infra Section IV.C.Show More But this theory tells us the boundaries of the judge-made law of property—so long as judges ground their decisions on the concept of ownership, they might get it wrong, but they do not act illegitimately. And this matters because, for better or worse, courts are in fact regularly called upon to adjudicate whether something can be owned.33 33.See, e.g., Lacks Complaint, supra note 1, at 13; Moore, 793 P.2d at 488–89; Wash. Univ. v. Catalona, 490 F.3d 667, 670 (8th Cir. 2007); Greenberg v. Mia. Child.’s Hosp. Rsch. Inst., Inc., 264 F. Supp. 2d 1064, 1074 (S.D. Fla. 2003) (holding that individuals with Canavan disease did not have an ownership interest in the gene that causes Canavan disease isolated from their tissue samples); Szafranski v. Dunston, 993 N.E.2d 502, 517–18 (Ill. App. Ct. 2013) (resolving a dispute of ownership between ex-boyfriend and ex-girlfriend over embryos they had jointly created).Show More

This Article builds on growing scholarly criticism of the “bundle of sticks” model of property.34 34.See, e.g., Henry E. Smith, Property as the Law of Things, 125 Harv. L. Rev. 1691, 1695 (2012) (criticizing the bundle theory); J.E. Penner, Property Rights: A Re-Examination 3–4 (2020) (same).Show More Indeed, although that model remains predominate,35 35.See, e.g., Eric R. Claeys, Property, Concepts, and Functions, 60 B.C. L. Rev. 1, 10 (2019) [hereinafter Claeys, Property, Concepts, and Functions] (“Bundle views probably remain dominant both in legal scholarship and in analytical-philosophy scholarship.”).Show More the view of property law as essentially arbitrary and normative has come under sustained attack over the past several decades.36 36.See, e.g., Jane B. Baron, Property as Control: The Case of Information, 18 Mich. Telecomms. & Tech. L. Rev. 367, 384 (2012) (noting that “the bundle-of-rights metaphor . . . has been under particularly heavy weather recently”); see also Shane Nicholas Glackin, Back to Bundles: Deflating Property Rights, Again, 20 Legal Theory 1, 1 (2014) (“My aim in this paper may, at first glance, strike the reader as somewhat odd. It is a defense of a theory of property rights that after all has been prevalent among legal theorists for most of the last century and that is taught as a matter of routine in most undergraduate property-law courses in order ‘to disabuse entering law students of their primitive lay notions regarding ownership.’”).Show More Moreover, some scholars have outlined conceptual theories of property’s boundaries analogous to this Article’s, although they offer different views of the concept’s substance.37 37.See Thomas W. Merrill, Property and the Right to Exclude, 77 Neb. L. Rev. 730, 753 (1998) [hereinafter Merrill, Property and the Right to Exclude] (arguing that the essence of property is exclusion); Arthur Ripstein, Possession and Use, in Philosophical Foundations of Property Law 156, 156 (James Penner & Henry E. Smith eds., 2013) (same for “exclusive use”); Penner, supra note 22, at 111 (arguing that “separability” delimits the boundaries of the concept of property); John Locke, Two Treatises of Government 185 (The Legal Classic Libr. 1994) (1690) (arguing that labor is the essence of property); Bart J. Wilson, The Property Species: Mine, Yours, and the Human Mind 19 (2020), https://doi.org/​10.1093/oso/9780190936785.003.0001 [https://perma.cc/PX8D-CW8B] (arguing that an irreducible concept of “mine” organizes property law).Show More Building within this intellectual movement, this Article offers a comprehensive explanation for why a conceptual theory of property’s boundaries matters and how it is possible.38 38.See infra Part II.Show More Further, it defends a substantive theory of the concept of ownership as control—and ownership’s boundaries at the boundaries of control—as opposed to the alternatives.39 39.See infra Part III.Show More

The argument proceeds in four Parts. In Part I, I canvass the development of contemporary property theory and illustrate the extent to which still-prevailing theories conflate theories about what can be owned with what should be, rendering questions about the boundaries of property fundamentally legislative.

In Part II, I lay the groundwork for a conceptual theory of property’s boundaries by explaining why such a theory matters and how it could be possible. In short, the extra-legal existence of concepts relied on by the common law legitimates common law law-making consistent with democratic theory, and the concept of ownership could exist metaphysically, psychologically, or socially.

In Part III, I outline a theory of property law as grounded in an extra-legal concept of ownership understood as absolute control. I argue that ownership—absolute control—is a determinate category. And I situate ownership as control in relation to other conceptual theories of property and show how it fares better at explaining the concept.

Finally, in Part IV, I apply this theory to some contemporary boundary challenges in property law, bioethics, and law and technology. I find that, under the theory, such things as organs, gametes, tissue samples, organisms, and corpses fall within property’s conceptual domain. In contrast, genetic information, gene sequences, information derived from tissue samples, and personal data cannot conceptually be subject to property law. Moreover, I apply the theory to the most challenging case recognized in positive law at the boundaries of ownership—intellectual property—and find that it fares plausibly, if roughly.

  1. Civil Complaint & Request for Jury Trial, Lacks v. Thermo Fisher Sci. Inc., No. 1:21-cv-02524 (D. Md. filed Oct. 4, 2021) [hereinafter Lacks Complaint]. ↑
  2. See generally Rebecca Skloot, The Immortal Life of Henrietta Lacks (2010) (summarizing the Henrietta Lacks story). ↑
  3. Lacks Complaint, supra note 1, at 2. ↑
  4. Id. ↑
  5. Id. at 3. ↑
  6. Id. ↑
  7. Id. at 3–4. ↑
  8. Id. at 12. Although rhetorically describing the incident as “theft,” the complaint sounds in unjust enrichment. Id. at 12–13. Unjust enrichment is an equitable remedy whereby a plaintiff is entitled to the gains of a defendant “enriched by misconduct and who acts . . . with knowledge of the underlying wrong.” Restatement (Third) of Restitution and Unjust Enrichment § 51(3) (Am. L. Inst. 2011). It seems that the plaintiffs have three distinct theories of the underlying “wrong”—(1) “theft,” Lacks Complaint, supra note 1, at 12; (2) “assault,” id. at 5; and (3) violation of privacy, id. at 4. This Article only touches on the legal plausibility of the first—whether or not a claim for unjust enrichment on the basis of conversion is plausible. Lacks’s claim based on assault or violation of privacy remains independently plausible. ↑
  9. 793 P.2d 479, 489 (Cal. 1990). ↑
  10. Id. (“[T]he laws governing such things as human tissues, transplantable organs, blood, fetuses, pituitary glands, corneal tissue, and dead bodies deal with human biological materials as objects sui generis, regulating their disposition to achieve policy goals rather than abandoning them to the general law of personal property.” (footnotes omitted)). ↑
  11.  See, e.g., Barbara J. Evans, Barbarians at the Gate: Consumer-Driven Health Data Commons and the Transformation of Citizen Science, 42 Am. J.L. & Med. 651, 659 (2016) (revealing that in a 2014 survey on personal health data, only thirteen percent of respondents were agnostic to the question of ownership). ↑
  12. See, e.g., Henry H. Heng, HeLa Genome Versus Donor’s Genome, 501 Nature 167, 167 (2013) (“I contend that the continual divergence of chromosomal features (‘karyotype’) and DNA sequence in dynamic cancer-cell populations undermines debate over ownership of the HeLa cancer-cell line derived from Henrietta Lacks six decades ago.”). ↑
  13. See, e.g., B. Björkman & S.O. Hansson, Bodily Rights and Property Rights, 32 J. Med. Ethics 209, 209 (2006) (“An underlying issue in these discussions is whether various types of biological material can be owned.”). ↑
  14. See, e.g., Shannon Cunningham, Kieran C. O’Doherty, Karine Sénécal, David Secko & Denise Avard, Public Concerns Regarding the Storage and Secondary Uses of Residual Newborn Bloodspots: An Analysis of Print Media, Legal Cases, and Public Engagement Activities, 6 J. Cmty. Genetics 117, 124 (2015) (“Across the public engagement activities we reviewed, numerous participants stated that parents have a right to retain ownership of their child’s blood samples and control over who has access to the specimens.”). ↑
  15. See, e.g., Jon F. Merz & Mildred K. Cho, What Are Gene Patents and Why Are People Worried About Them?, 8 Cmty. Genetics 203, 203 (2005) (noting that “[n]umerous ethical concerns have been raised about the effects of [gene] patents on clinical medical practice as well as on research and development,” although “[n]early 30,000 human genes have been patented in the US”). ↑
  16. See, e.g., Radhika Rao, Property, Privacy, and the Human Body, 80 B.U. L. Rev. 359, 414 (2000) (“Courts appear utterly confused as to how to classify these objects, characterizing sperm and embryos variously as property, quasi-property, or not the subject of property rights at all but governed instead by precepts of privacy.”); see also Hecht v. Superior Court, 16 Cal. App. 4th 836, 850 (1993) (holding that a decedent “had an interest, in the nature of ownership,” permitting sperm to be bequeathed); David Horton, Indescendibility, 102 Calif. L. Rev. 543, 580–81 (2014) (discussing the extent to which Hecht supports the existence of property rights in sperm). ↑
  17. See, e.g., Ray D. Madoff, Immortality and the Law: The Rising Power of the American Dead 16–17 (2010). ↑
  18. See, e.g., David A. Dana & Nadav Shoked, Property’s Edges, 60 B.C. L. Rev. 753, 761 (2019) (“[O]ver the past few months, popular and legislative disputes over privacy on the Internet and the allocation of rights to information between users, websites, and providers[] have likewise extensively employed—somewhat thoughtlessly—the boundary-focused terms supposedly derived from traditional property law.”). ↑
  19. See, e.g., Meredith M. Render, The Law of the Body, 62 Emory L.J. 549, 569 (2013) [hereinafter Render, The Law of the Body] (noting that “when conditions are ripe—when we discover something new (or something that is useful in a new way) that is also ‘ownable’—our concept of property bends to accommodate the new entity”); Abraham Bell & Gideon Parchomovsky, A Theory of Property, 90 Cornell L. Rev. 531, 563 (2005) (“As society changes, the value derived from different assets is transformed, and therefore the objects of property law will change over time.”). ↑
  20. See, e.g., Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv. L. Rev. 1089, 1089–93 (1972) (arguing that society chooses to protect entitlements with “property rules” or “liability rules” in order to maximize welfare); Jessica L. Roberts, Progressive Genetic Ownership, 93 Notre Dame L. Rev. 1105, 1159–60 (2018) (arguing that the state should recognize individual ownership of genetic information because doing so would maximize human flourishing under Roberts’s pluralistic theory of human flourishing). ↑
  21. See, e.g., Abraham Bell & Gideon Parchomovsky, Reconfiguring Property in Three Dimensions, 75 U. Chi. L. Rev. 1015, 1015 (2008) (“As any first-year student knows, modern theorists have savaged the idea of ‘absolute dominion’ and tend, instead, to view property as a ‘bundle of rights,’ . . . .”). ↑
  22. Cf. J.E. Penner, The Idea of Property in Law 106 (paperback ed. 2000) (“For most philosophers, the actual objects of property are uninteresting, and the real meat of the question about property is how we can justify unequal holdings.”). ↑
  23. See infra Section II.A. ↑
  24. See infra Section III.A. ↑
  25. See infra Part IV. ↑
  26. See infra Section IV.A. ↑
  27. See infra Section IV.B. ↑
  28. See, e.g., Thomas W. Merrill & Henry E. Smith, Property: Principles and Policies 57 (3d ed. 2017) (“[A]mong the ways that ownership can get started is for someone to possess a thing for the first time with the requisite intent.”). ↑
  29. At least, it’s not what the rhetoric of the lawsuit is about. It is in fact possible to have a claim for unjust enrichment even if the only thing Lacks owned were her cells ab initio, as the derivation of the metaphysically distinct HeLa cell line may have been premised on the underlying wrong. ↑
  30. See generally Heng, supra note 12. ↑
  31. Indeed, in Moore, the court held that Moore had stated a claim for breach of informed consent after dismissing Moore’s claim for conversion. See Moore v. Regents of the Univ. of Cal., 793 P.2d 479, 497 (Cal. 1990). ↑
  32. See infra Section IV.C. ↑
  33. See, e.g., Lacks Complaint, supra note 1, at 13; Moore, 793 P.2d at 488–89; Wash. Univ. v. Catalona, 490 F.3d 667, 670 (8th Cir. 2007); Greenberg v. Mia. Child.’s Hosp. Rsch. Inst., Inc., 264 F. Supp. 2d 1064, 1074 (S.D. Fla. 2003) (holding that individuals with Canavan disease did not have an ownership interest in the gene that causes Canavan disease isolated from their tissue samples); Szafranski v. Dunston, 993 N.E.2d 502, 517–18 (Ill. App. Ct. 2013) (resolving a dispute of ownership between ex-boyfriend and ex-girlfriend over embryos they had jointly created). ↑
  34. See, e.g., Henry E. Smith, Property as the Law of Things, 125 Harv. L. Rev. 1691, 1695 (2012) (criticizing the bundle theory); J.E. Penner, Property Rights: A Re-Examination 3–4 (2020) (same). ↑
  35. See, e.g., Eric R. Claeys, Property, Concepts, and Functions, 60 B.C. L. Rev. 1, 10 (2019) [hereinafter Claeys, Property, Concepts, and Functions] (“Bundle views probably remain dominant both in legal scholarship and in analytical-philosophy scholarship.”). ↑
  36.  See, e.g., Jane B. Baron, Property as Control: The Case of Information, 18 Mich. Telecomms. & Tech. L. Rev. 367, 384 (2012) (noting that “the bundle-of-rights metaphor . . . has been under particularly heavy weather recently”); see also Shane Nicholas Glackin, Back to Bundles: Deflating Property Rights, Again, 20 Legal Theory 1, 1 (2014) (“My aim in this paper may, at first glance, strike the reader as somewhat odd. It is a defense of a theory of property rights that after all has been prevalent among legal theorists for most of the last century and that is taught as a matter of routine in most undergraduate property-law courses in order ‘to disabuse entering law students of their primitive lay notions regarding ownership.’”). ↑
  37. See Thomas W. Merrill, Property and the Right to Exclude, 77 Neb. L. Rev. 730, 753 (1998) [hereinafter Merrill, Property and the Right to Exclude] (arguing that the essence of property is exclusion); Arthur Ripstein, Possession and Use, in Philosophical Foundations of Property Law 156, 156 (James Penner & Henry E. Smith eds., 2013) (same for “exclusive use”); Penner, supra note 22, at 111 (arguing that “separability” delimits the boundaries of the concept of property); John Locke, Two Treatises of Government 185 (The Legal Classic Libr. 1994) (1690) (arguing that labor is the essence of property); Bart J. Wilson, The Property Species: Mine, Yours, and the Human Mind 19 (2020), https://doi.org/​10.1093/oso/9780190936785.003.0001 [https://perma.cc/PX8D-CW8B] (arguing that an irreducible concept of “mine” organizes property law). ↑
  38. See infra Part II. ↑

  39. See infra Part III. ↑

Government’s Religious Hospitals

States are not supposed to own or operate religious institutions, but they now do. This Article uncovers that across the country, church and state have merged, joint ventured, and contracted to form public, yet religious, hospitals. It traces the origins of these curious institutions to dramatic transformations over the last forty years in the political economy of healthcare and the constitutional doctrine of church and state. At stake are the foundational commitments of secular government to equal citizenship and religious freedom.

Yet, constitutional litigation offers limited recourse. In an increasingly religious marketplace, only sustained attention to the political economy can reverse the confluence of church and state. This Article proposes strategies to unite religion law and political economy and to move from religious domination to pluralism and from discrimination to equality. As government-religious institutions proliferate beyond healthcare—in schools, prisons, police departments, and child-welfare agencies—reform efforts must take on broader trends toward consolidation, privatization, and religionization of the economy.

Introduction

Waking up in a hospital, you spy a religious painting at the foot of the bed. The doctors who rush in wear white coats with the names of a religious figure and of the state. Your treatment options, they tell you, must comply with the faith tradition. Clerics on the ethics committee will approve your care. As you recover, you learn that the government owns the hospital, pays the staff, and puts the state seal on the front of the building. On the board of directors, some seats are reserved for government bureaucrats, others for members in good standing of the Church.

This experience could describe hospital care in many countries around the world. But the United States is not known for such tight-knit relationships between any church and the state. Under the Establishment Clause, governments are not supposed to own or operate religious institutions. They are not expected to impose religious tests for public office or adopt a denomination as their own.

Nevertheless, they have. This Article reveals that across the country, church and state have fused in powerful entities that deliver critical services. The government’s religious hospitals are state-governed, state-run, and/or state-owned. But religion permeates their halls. Faith dictates their charitable missions and ethical decisions. Under the banner of the state, patients may be denied healthcare for religious reasons. Public employees must display religious messages and conform their conduct to religious rules. Positions of governance and leadership, typically open to all in public hospitals, are reserved for individuals who belong to particular sects.

Sometimes the state owns the religious institution outright—like the University of Alabama’s “faith-based health system”1 1.See Warren Averett CPAs and Advisors, The Health Care Authority for Baptist Health, An Affiliate of UAB Health System: Consolidated Financial Statements, Required Supplementary Information, and Additional Information 3 (2020), https://www.legisl​ature.state.al.us/pdf/eopa/audit_reports/ExaminersPDFFiles/5956_21-091-CPA-Baptist%20​HCA.pdf [https://perma.cc/R3XE-J372] [hereinafter Baptist Health Financials].Show More with a mission of “witness[ing] to the love of God through Jesus Christ.”2 2.See Spiritual Care, Baptist Health, https://www.baptistfirst.org/patients-and-visitors/spi​ritual-care/ [https://perma.cc/6XEB-3W7U] (last visited Oct. 17, 2022).Show More Sometimes the religious and state entities become joint venturers—like Trinity Health and the University of Michigan, which agreed to run a hospital “consistent with the teachings of the Roman Catholic Church.”3 3.Amended and Restated Bylaws of St. Joseph Mercy Chelsea, Inc., art. I, § 3, art. II, § 1 [hereinafter Amended and Restated Bylaws] (on file with author).Show More Other times, a dense network of operational, managerial, or other relationships connects church and government—as at the University of Texas, the University of California, and numerous public health districts, where clinical staff and medical students must conform to religious teachings against abortion, contraception, fertility treatments, and LGBTQ-affirming care.4 4.See infra Section I.D.Show More

So how did we end up with institutions that so thoroughly merge public and religious? This Article argues that the answer lies in dramatic transformations in healthcare’s political economy and in Religion Clause doctrine over the last forty years. Neoliberalism made government-religious hospitals economically and politically attractive during a period when the Supreme Court’s erosion of the Establishment Clause made them legally plausible.5 5.Like other contested concepts, there are debates about the term’s core meaning. We focus on two central strands of neoliberal political economy—privatizing social services and valorizing market ordering over democratic governance. See David Singh Grewal & Jedediah Purdy, Introduction: Law and Neoliberalism, 77 Law & Contemp. Probs. 1, 6 (2014) (discussing the definition of neoliberalism).Show More These institutions, joining government authority with religious domination, undermine religious freedom and threaten equal citizenship in a pluralistic society.

From the 1980s onward, policies favoring austerity and privatization became ascendant and decimated the public sector. Public hospitals—a mainstay of cities and a natural home for public universities’ medical faculties—closed their doors or privatized as governments divested.6 6.See George Aumoithe, Dismantling the Safety-Net Hospital: The Construction of “Underutilization” and Scarce Public Hospital Care, 48 J. Urb. Hist. 1, 2–3 (2021); Michelle Ko, Jack Needleman, Kathryn Pitkin Derose, Miriam J. Laugesen & Ninez A. Ponce, Residential Segregation and the Survival of U.S. Urban Public Hospitals, 71 Med. Care Res. & Rev. 243, 244 (2014).Show More Meanwhile, rising costs prompted private hospitals to engage in a relentless drive for revenue.7 7.See, e.g., Andrew T. Simpson, The Medical Metropolis: Health Care and Economic Transformation in Pittsburgh and Houston 121 (2019) (“During the 1980s, 1990s, and 2000s, not-for-profit leaders not only drew organizational inspiration from the for-profit sector by pursuing a wave of mergers and acquisitions . . . , but were also more willing to speak in a language that echoed their corporate counterparts.”).Show More They merged and consolidated at an unprecedented and accelerating rate, nearly eradicating competition in hospital markets.8 8.See Jonathan B. Baker, The Antitrust Analysis of Hospital Mergers and the Transformation of the Hospital Industry, 51 Law & Contemp. Probs. 93, 93 (1988) (“During the early 1980s, acquisitions or consolidations occurred at the rate of roughly two hundred per year, dramatically higher than the yearly rates of fifty in 1972 and five in 1961.”).Show More

But healthcare’s political economy tells only part of the story.9 9.We use the term “political economy” to mean “the relation of politics to the economy, understanding that the economy is always already political in both its origins and its consequences.” Jedediah Britton-Purdy, David Singh Grewal, Amy Kapczynski & K. Sabeel Rahman, Building a Law-and-Political-Economy Framework: Beyond the Twentieth-Century Synthesis, 129 Yale L.J. 1784, 1792 (2020).Show More A contemporaneous revolution in Establishment Clause doctrine abandoned principles of separationism and invited more intensive church-state partnerships.10 10.See infra Section III.B.Show More Not long ago, the government-religious hospitals we describe would have encountered rather obvious constitutional obstacles.11 11.See infra Section III.A.Show More Under the First Amendment’s Establishment Clause, a “wall of separation” was supposed to hold church and state apart.12 12.Letter from Thomas Jefferson to the Danbury Baptists (Jan. 1, 1802), in 36 The Papers of Thomas Jefferson 258, 258 (Barbara B. Oberg ed., 2009).Show More States nonetheless could fund religiously affiliated hospitals, provided they delivered secular healthcare services, refrained from discrimination in hiring, and committed to respecting their patients’ consciences.13 13.See infra notes 207–38 and accompanying text.Show More But in the last few decades, courts dismantled a number of constitutional constraints on aid to sectarian institutions. By the early 2000s, Establishment Clause doctrine aligned with neoliberal economic policies to galvanize public partnerships with faith-infused institutions. Privatization took on a religious hue.

Faced with demands for healthcare provision and education, cities, counties, and public universities stepped into this constitutionally unsettled space. And they found few options for partnership. No longer was it common to find the public hospitals that once hosted safety-net services and academic medicine. Trends toward consolidation, which escalated with each passing decade, left nearly all cities with highly concentrated hospital markets.14 14.Ninety-five percent of metropolitan statistical areas have highly concentrated hospital markets. Jaime S. King et al., Preventing Anticompetitive Healthcare Consolidation: Lessons from Five States 1, 6–7 (June 2020), https://sourceonhealthcare.org/wp-content/uploads/​2020/06/PreventingAnticompetitiveHealthcareConsolidation.pdf [https://perma.cc/5RRX-87​FJ].Show More The secular options assumed by judges and policymakers had dwindled.

Often, commercially successful religious entities were among the few potential joint venturers and partners. Most commonly, those entities were Catholic. Due to their “hierarchy and interconnectedness,” as well as their longstanding significant market share, Catholic healthcare systems had proved well-positioned to consolidate market power as neoliberalism took off.15 15.Allison Roberts, Selling Salvation: Catholic Hospitals in the Healthcare Marketplace, Canopy Forum (2019), https://canopyforum.org/2019/12/19/selling-salvation-catholic-hospi​tals-in-the-healthcare-marketplace-by-allison-roberts/ [https://perma.cc/T99U-54PC]. Today, Catholic systems hold a dominant or high market share in more than one-third of U.S. counties, where 38.7% of women of reproductive age live. Coleman Drake, Marian Jarlenski, Yuehan Zhang & Daniel Polsky, Market Share of US Catholic Hospitals and Associated Geographic Network Access to Reproductive Health Services, 3 JAMA Network Open 1, 6 (2020).Show More And these religious partners, once motivated to claim nondiscrimination, now typically insisted on a more thickly sectarian identity.16 16.Melinda Cooper, Family Values: Between Neoliberalism and the New Social Conservatism 271–73 (2017) (detailing this shift in social service providers and government’s role); Stephen Monsma, Putting Faith in Partnerships 270–73 (2009) (describing empirically the spectrum of religious social services from deeply sectarian and faith-infused to more ecumenical); Barbra Mann Wall, American Catholic Hospitals: A Century of Changing Markets and Missions 181–86 (2011) (describing Catholic hierarchy’s increasing extent and rigidity of control over Catholic hospitals and their conflicts with the women religious traditionally sponsoring the hospitals).Show More In this landscape, governments created new institutions where secular and sacred, public and private, share governance, ownership, and operation.

Depending on one’s point of view, the central problem of these hospitals might be privatization of public services, restriction of healthcare access, or discrimination based on sex. While we are concerned about each of these issues, our focus is on the threat to religious freedom as dominance in healthcare has been converted into religious domination backed not only by private power but by the authority of the government.17 17.For an extended argument against converting power in one social sphere into domination in another, see Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (1983).Show More This confluence undermines equal citizenship and religious freedom in distinct and novel ways.

The promise of secular government is that equal membership in the political community will not depend on one’s religion and that the state will not impose religion on its citizens.18 18.See Christopher L. Eisgruber & Lawrence G. Sager, Religious Freedom and the Constitution 52–53 (2007); Alan Schwarz, No Imposition of Religion: The Establishment Clause Value, 77 Yale L.J. 692, 694–95 (1968); James Madison, Memorial and Remonstrance Against Religious Assessments (June 20, 1785), in James Madison: Writings 29, 29–36 (Jack N. Rakove ed., 1999); Thomas Jefferson, A Bill for Establishing Religious Freedom, in 2 The Papers of Thomas Jefferson 545, 546 (Julian P. Boyd ed., 1950).Show More Government’s institutions will be open to all, controlled by the people, and able to give public reasons for decisions.19 19.See generally Micah Schwartzman, The Sincerity of Public Reason, 19 J. Pol. Phil. 375 (2011) (discussing the idea of public reason); John Rawls, The Idea of Public Reason Revisited, 64 U. Chi. L. Rev. 765 (1997) (same).Show More America’s religious churches and charities, by contrast, can serve co-religionists, discriminate in their choice of leaders, and give religious reasons that people of other faiths cannot understand.20 20.See Ira C. Lupu & Robert W. Tuttle, Secular Government, Religious People 73 (2014).Show More

Government-religious hospitals upend this settlement and confound theories on both the left and the right about the relationship between church and state. Across the political spectrum, religion law scholars assume the existence of secular options and the absence of religious domination in the marketplace.21 21.See, e.g., Kent Greenawalt, When Free Exercise and Nonestablishment Conflict 69 (2017) (“If the government is the direct and primary source of funding for a program, religious discrimination by an organization in its employment should probably be regarded as unconstitutional, just as it would be for the government itself.”); Thomas C. Berg, Religious Accommodation and the Welfare State, 38 Harv. J.L. & Gender 104, 150–51 (2015) (“It is sensible to rely in some part on the workings of markets to achieve accommodation’s purpose.”).Show More They broadly agree that equal membership in the political community cannot depend on one’s religion and that the state cannot prefer any denomination. One need not be a strict separationist to draw the line at a state institution that proclaims a denominational identity, imposes religious tests, and uses religious reasons.

The embrace of joint church-state institutions may not be inexorable. Preserving principles of secular government in an increasingly religious marketplace is still possible, if not through constitutional litigation, then by addressing broader trends toward consolidation, privatization, and religionization of the economy. This Article considers a range of concrete reform measures, from embracing competition policy to state provision of social services to transacting for church-state separation. In combination, these reforms would move, albeit incrementally, from religious domination toward pluralism and from religious preference toward equality.

This Article proceeds in four Parts. Examining articles of incorporation, asset purchase agreements, and management contracts, Part I explores the details of government-religious hospitals and presents a rough taxonomy of the forms they take. Parts II and III argue that major shifts in healthcare’s political economy and in Religion Clause doctrine over the last forty years together spurred the merger of church and state. The establishment of government-owned, -directed, and -operated religious hospitals came to threaten equal citizenship and religious freedom. Part IV turns to reforms. It demonstrates how antitrust enforcement, public options, and public utility regulation could reshape the political economy to remedy and forestall government-religious hospitals.

The setting of our law and political economy tale is the hospital sector, but evidence mounts that government-religious institutions may exist elsewhere. The legacy of neoliberalism, with its emphasis on privatization, drove and continues to drive religious-public collaborations—in schools, prisons, police departments, child-welfare agencies, and beyond.22 22.See infra notes 379–83 and accompanying text.Show More Alliances between religious and economic conservatives have generated transfers of public funds, services, and decision-making to religious institutions. And as in the hospital sector, seemingly unrelated changes in constitutional doctrine increasingly create a path toward merger of church and state.

  1. See Warren Averett CPAs and Advisors, The Health Care Authority for Baptist Health, An Affiliate of UAB Health System: Consolidated Financial Statements, Required Supplementary Information, and Additional Information 3 (2020), https://www.legisl​ature.state.al.us/pdf/eopa/audit_reports/ExaminersPDFFiles/5956_21-091-CPA-Baptist%20​HCA.pdf [https://perma.cc/R3XE-J372] [hereinafter Baptist Health Financials]. ↑
  2.  See Spiritual Care, Baptist Health, https://www.baptistfirst.org/patients-and-visitors/spi​ritual-care/ [https://perma.cc/6XEB-3W7U] (last visited Oct. 17, 2022). ↑
  3. Amended and Restated Bylaws of St. Joseph Mercy Chelsea, Inc., art. I, § 3, art. II, § 1 [hereinafter Amended and Restated Bylaws] (on file with author). ↑
  4. See infra Section I.D. ↑
  5. Like other contested concepts, there are debates about the term’s core meaning. We focus on two central strands of neoliberal political economy—privatizing social services and valorizing market ordering over democratic governance. See David Singh Grewal & Jedediah Purdy, Introduction: Law and Neoliberalism, 77 Law & Contemp. Probs. 1, 6 (2014) (discussing the definition of neoliberalism). ↑
  6.  See George Aumoithe, Dismantling the Safety-Net Hospital: The Construction of “Underutilization” and Scarce Public Hospital Care, 48 J. Urb. Hist. 1, 2–3 (2021); Michelle Ko, Jack Needleman, Kathryn Pitkin Derose, Miriam J. Laugesen & Ninez A. Ponce, Residential Segregation and the Survival of U.S. Urban Public Hospitals, 71 Med. Care Res. & Rev. 243, 244 (2014). ↑
  7.  See, e.g., Andrew T. Simpson, The Medical Metropolis: Health Care and Economic Transformation in Pittsburgh and Houston 121 (2019) (“During the 1980s, 1990s, and 2000s, not-for-profit leaders not only drew organizational inspiration from the for-profit sector by pursuing a wave of mergers and acquisitions . . . , but were also more willing to speak in a language that echoed their corporate counterparts.”). ↑
  8. See Jonathan B. Baker, The Antitrust Analysis of Hospital Mergers and the Transformation of the Hospital Industry, 51 Law & Contemp. Probs. 93, 93 (1988) (“During the early 1980s, acquisitions or consolidations occurred at the rate of roughly two hundred per year, dramatically higher than the yearly rates of fifty in 1972 and five in 1961.”). ↑
  9. We use the term “political economy” to mean “the relation of politics to the economy, understanding that the economy is always already political in both its origins and its consequences.” Jedediah Britton-Purdy, David Singh Grewal, Amy Kapczynski & K. Sabeel Rahman, Building a Law-and-Political-Economy Framework: Beyond the Twentieth-Century Synthesis, 129 Yale L.J. 1784, 1792 (2020). ↑
  10. See infra Section III.B. ↑
  11. See infra Section III.A. ↑
  12. Letter from Thomas Jefferson to the Danbury Baptists (Jan. 1, 1802), in 36 The Papers of Thomas Jefferson 258, 258 (Barbara B. Oberg ed., 2009). ↑
  13. See infra notes 207–38 and accompanying text. ↑
  14. Ninety-five percent of metropolitan statistical areas have highly concentrated hospital markets. Jaime S. King et al., Preventing Anticompetitive Healthcare Consolidation: Lessons from Five States 1, 6–7 (June 2020), https://sourceonhealthcare.org/wp-content/uploads/​2020/06/PreventingAnticompetitiveHealthcareConsolidation.pdf [https://perma.cc/5RRX-87​FJ]. ↑
  15. Allison Roberts, Selling Salvation: Catholic Hospitals in the Healthcare Marketplace, Canopy Forum (2019), https://canopyforum.org/2019/12/19/selling-salvation-catholic-hospi​tals-in-the-healthcare-marketplace-by-allison-roberts/ [https://perma.cc/T99U-54PC]. Today, Catholic systems hold a dominant or high market share in more than one-third of U.S. counties, where 38.7% of women of reproductive age live. Coleman Drake, Marian Jarlenski, Yuehan Zhang & Daniel Polsky, Market Share of US Catholic Hospitals and Associated Geographic Network Access to Reproductive Health Services, 3 JAMA Network Open 1, 6 (2020). ↑
  16.  Melinda Cooper, Family Values: Between Neoliberalism and the New Social Conservatism 271–73 (2017) (detailing this shift in social service providers and government’s role); Stephen Monsma, Putting Faith in Partnerships 270–73 (2009) (describing empirically the spectrum of religious social services from deeply sectarian and faith-infused to more ecumenical); Barbra Mann Wall, American Catholic Hospitals: A Century of Changing Markets and Missions 181–86 (2011) (describing Catholic hierarchy’s increasing extent and rigidity of control over Catholic hospitals and their conflicts with the women religious traditionally sponsoring the hospitals). ↑
  17. For an extended argument against converting power in one social sphere into domination in another, see Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (1983). ↑
  18.  See Christopher L. Eisgruber & Lawrence G. Sager, Religious Freedom and the Constitution 52–53 (2007); Alan Schwarz, No Imposition of Religion: The Establishment Clause Value, 77 Yale L.J. 692, 694–95 (1968); James Madison, Memorial and Remonstrance Against Religious Assessments (June 20, 1785), in James Madison: Writings 29, 29–36 (Jack N. Rakove ed., 1999); Thomas Jefferson, A Bill for Establishing Religious Freedom, in 2 The Papers of Thomas Jefferson 545, 546 (Julian P. Boyd ed., 1950). ↑
  19. See generally Micah Schwartzman, The Sincerity of Public Reason, 19 J. Pol. Phil. 375 (2011) (discussing the idea of public reason); John Rawls, The Idea of Public Reason Revisited, 64 U. Chi. L. Rev. 765 (1997) (same). ↑
  20. See Ira C. Lupu & Robert W. Tuttle, Secular Government, Religious People 73 (2014). ↑
  21. See, e.g., Kent Greenawalt, When Free Exercise and Nonestablishment Conflict 69 (2017) (“If the government is the direct and primary source of funding for a program, religious discrimination by an organization in its employment should probably be regarded as unconstitutional, just as it would be for the government itself.”); Thomas C. Berg, Religious Accommodation and the Welfare State, 38 Harv. J.L. & Gender 104, 150–51 (2015) (“It is sensible to rely in some part on the workings of markets to achieve accommodation’s purpose.”). ↑

  22. See infra notes 379–83 and accompanying text. ↑

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