Taboo Trades
Taboo Trades
The Market Limits of Free Exercise with Bailey Sanders
My guest today is Bailey Sanders, a Visiting Assistant Professor of Law at Duke University. Her work examines how market competition can advance gender equality and the critical role of women’s representation in law and politics. Her research bridges antitrust, constitutional law, and gender equity, and has appeared or is forthcoming in leading law reviews and peer-reviewed journals. She is also co-author of The Fundamental Voter: American Electoral Democracy, 1952–2020 (Oxford University Press, 2024).
Sanders received her JD and PhD in Political Science from Duke University before clerking for Judge Gerald B. Tjoflat on the U.S. Court of Appeals for the Eleventh Circuit and practicing in the antitrust group at McDermott Will & Emery in Washington, D.C. Most importantly, she was my student at Duke Law School during the height of Covid, and one of the few bright spots in my zoom day.
She joins us today to discuss her paper, Religious Riders and the Sherman Act, forthcoming in the Michigan Law Review. This episode is co-hosted by UVA Law 2Ls Sari Mithal and Cindy Tran.
Show Notes
About Bailey Sanders
About Kim Krawiec
About Sari Mithal
About Cindy Tran
Sanders, Bailey, Religious Riders and the Sherman Act (January 01, 2024). Michigan Law Review, Forthcoming.
Bailey Sanders, Barak Richman, and Kierra B. Jones, “Growing Market Power Among Catholic Hospitals Restrains Access to Reproductive Health Care”, American Progress (SEP 29, 2025)
Bailey Sanders, “The Price of Fertility: Egg Donor Compensation in the United States Following Kamakahi v. The American Society for Reproductive Medicine,” Houston Journal of Health Law and Policy, Vol. 22 (2022)
Kimberly D. Krawiec, Sunny Samaritans and Egomaniacs: Price-Fixing in the Gamete Market, Law and Contemporary Problems, Vol. 72, No. 3, 2009.
Kimberly D. Krawiec, Gametes: Commodification and The Fertility Industry, The Routledge Handbook of Commodification, Vida Panitch and Elodie Bertrand eds., 2023.
Bailey Sanders: Antitrust takes no stance on whether Catholic healthcare is in and of itself desirable.
If consumers demand Catholic healthcare and secular hospitals are pressured by competitive forces to start providing healthcare funneled through religious doctrine,
antitrust law is going to say, well, that's what the market is demanding and we want the market to just work itself out.
But that's not what's happening in the scenarios that I focus on. Instead, we have two private firms entering into an agreement where one firm is agreeing to cease or reduce output according to the other firm's preferences and not in response to market forces.
Kim Krawiec: Hey. Hey everybody. Welcome to the Taboo Trades Podcast, a show about stuff we aren't supposed to sell, but do anyway.
I'm your host, Kim Kravik.
My guest today is Bailey Sanders, a visiting assistant professor of law at Duke University.
Her work examines how market competition can advance gender equality and the critical role of women's representation in law and politics.
Her research bridges antitrust, constitutional law, and gender equity and has appeared or is forthcoming in leading law reviews and peer reviewed journals.
She is also co author of the Fundamental American Electoral Democracy from 1952 to 2020, published by Oxford University Press in 2024.
Sanders received her J.D. and Ph.D. in Political Science from Duke University before clerking on the U.S. court of Appeals for the 11th Circuit and practicing in the antitrust group at McDermott, Will & Emory in Washington, D.C.
most importantly, she was my student at Duke Law School during the height of COVID and one of the few bright spots on my Zoom Day.
She joins us today to discuss her paper, Religious Writers and the Sherman forthcoming in the Michigan Law Review.
So welcome guys. Thanks for joining me today.
Sari Mithal: Thank you. It's great to be here.
Cindy Tran: Thanks for having us. I'm excited for today's show.
Kim Krawiec: Wonderful. So why don't we start by having each of you introduce yourselves to our listeners?
Sari Mithal: Sure. Hi, I'm Sari. I'm a 2L at UVA Law. I'm excited to be here today.
Cindy Tran: And hi, my name is Cindy Tran. I'm from Northern Virginia and I'm also a 2L here at UVA Law.
Kim Krawiec: Great. So both of you volunteered. You chose to be the co host for this particular episode.
What was it about the topic or the guest today that made or the paper today that made you want to engage a little more deeply with this particular one?
Sari Mithal: Well, I think for me, I grew up in a deeply religious country that was very unapologetic about how religion impacts our society and governing institutions.
And so I was interested in how a country that claims secularism copes with the pervasiveness of religion within its borders and when,
how, and if it chooses to constrain religion's influence.
And I thought that Bailey's article spoke to that interest in a really compelling way.
And at least for me, in a very. Through a very novel lens, antitrust, which I don't have much, if really any.
Kim Krawiec: Experience with that, is a fascinating backstory. One reason I love doing these roundtables is,
first of all, the listeners enjoy learning more about you guys. But I enjoy learning more about you guys because even though we spend a lot of time together talking about ideas and papers and stuff, we don't always talk about ourselves in our class.
And I like learning more about each of you.
So, Cindy, what about you?
Cindy Tran: For me, it's kind of the opposite of sorrys. I haven't really had a lot of exposure to religion and how it intersects with the law, but I majored in economics in undergrad, and I'm very interested in antitrust practice in the future.
So Bailey's analysis of this market was very fascinating to me.
Bailey Sanders: Wonderful.
Kim Krawiec: Thank you. So,
Cindy, let's stick with you, since I've already got you talking.
We have lots of questions today for Bailey. What is it that you're particularly interested in learning or hearing from her about?
Cindy Tran: Yeah, after reading Bailey's article,
I thought applying antitrust law to this market of religious and secular hospitals made a lot of sense.
So I'm curious to hear why legal action like Bailey's proposal hasn't been brought before,
and what practical or logistical obstacles are possibly standing in the way of that.
Kim Krawiec: Yeah, I'm interested as well. It's one of those things.
And I will say I told you guys stories about it before, that it does happen sometimes. Right. You write a paper and you're like, somebody should bring a lawsuit. Right.
And the critique from law professors is almost always, well, if it's so clear, how come nobody's already, you know, why hasn't some plaintiff's lawyer brought the suit already? And then sometimes they do.
And so, as improbable as it seems to listeners out there, sometimes academic work is ahead of the curve on stuff like this. And I'm sure that Bailey hopes that her peace is one of them.
Sari, what about you? What are you interested in talking more about today?
Sari Mithal: I think I'm really interested in the strategy of how you bring up these lawsuits and who you bring them against in particular,
Kind of the secular versus the religious hospital divide.
I thought you spoke to that in a really interesting way, and I'M excited to hear her thoughts on that.
Kim Krawiec: Yes. One of the things I also liked about the paper is that it goes into details about the structure of a suit and the considerations of a suit, who should bring it, what the claim should be, what relief might look like in a way that was really compelling.
Well, let's join the others.
Hi, Bailey. Thanks for joining us.
Bailey Sanders: Thanks for having me. I'm so excited.
Kim Krawiec: We are, too. So why don't we start by just having you give a brief introduction of yourself to the audience?
Bailey Sanders: Sure.
So my name is Bailey Sanders, and I'm a visiting assistant professor at Duke Law,
where I research and write in the areas of antitrust con law and health law.
Kim Krawiec: So, Bailey, we are here. You're going to have to remind me actually of the title of the paper because I know you changed it since the one I saw. What's the title of the paper we're discussing today?
Bailey Sanders: So now it's titled Religious Writers and the Sherman Act.
Kim Krawiec: Okay. And so for listeners, you can find a link to that paper in the show notes. It's on ssrn. You should read the whole thing, especially if you have further questions or are interested in the stuff we're discussing today.
But for now, Bailey, why don't we just start by getting you to explain to people how you came to this project, how you became interested in it.
Bailey Sanders: Great.
So my primary research agenda examines the intersection of antitrust and gender equality.
In particular,
I'm interested in understanding how antitrust enforcement can promote competition in markets that are of key importance to women.
And in my opinion, reproductive healthcare markets are right at the top of that list.
So I was already looking at these markets to see what potential antitrust might hold.
And I became aware of two types of contractual restraints that are being imposed by religious firms in this market.
And so, as some of your listeners may be aware, Catholic healthcare systems have been growing their footprint in the healthcare market for decades.
And while they play a really important role in providing healthcare to Americans, they're also limited in terms of what reproductive care they can provide because they operate under a religious standard of care that limits their ability to provide services like miscarriage or contraception or sterilization,
except under certain theologically permissible circumstances.
And I learned that there are two ways in which Catholic hospitals have sought to expand the reach of these religious exemptions or religious restrictions excuse me, into secular healthcare institutions.
First,
when Catholic hospitals enter into joint ventures or partnerships with secular hospitals, they often require the secular hospital to begin complying with religious doctrine and stop providing certain reproductive services.
And second, we also see Catholic hospitals that are up for sale impose restrictions on secular buyers that prevent the secular buyer from expanding reproductive services post sale.
And so, from an antitrust perspective, these contractual practices are concerning because they're limiting output in the market.
And in my paper, I put forth my argument as to why I think these Restraints violate Section 1 of the Sherman act,
which prohibits anti competitive restraints on trade.
Kim Krawiec: Thank you for that introduction. I am now going to turn this over to Cindy and Sari. They are in charge of the rest of the day, basically.
Cindy Tran: Hi, Bailey. We're so excited that you could join us for today's episode. I'll start us off with a question about what might happen if your proposal is implemented.
So say that an injunction compels a secular partner to resume full reproductive services.
How should the state anticipate the Catholic hospital's response?
Because the Catholic hospital maintains its unilateral right to refuse services.
Is there a risk that enforcing competition against the secular partner might incentivize the religious institution to dissolve the joint venture or abruptly stop collaborating in essential services like pediatrics, for example?
Bailey Sanders: That was great to meet you, Cindy Ansari.
I think this is a really fair question.
And it reflects a tension that exists within antitrust law.
So sometimes we might worry that our efforts to protect competition. We actually end up at a worse outcome than we intended.
And so, for instance, in the merger context, antitrust law recognizes that sometimes it may be necessary to allow an otherwise anti competitive merger to take place.
Because without the merger, one of those firms is just going to go out of business.
And we'd prefer a lessening of competition through the merger than seeing that firm simply exit the market.
But antitrust only makes this exception very rarely. And firms have a high burden to prove this defense.
To my knowledge, this scenario, what we call the failing firm defense, hasn't been applied to the context of joint ventures.
But I think your question is kind of getting at the same idea. We might think that the same intuition applies here. Because maybe the Catholic hospital will cease its joint venture if it's not allowed to impose a religious rider.
And maybe we're worried about losing the benefits of the joint venture.
So I think it's a fair question. But I think there's two reasons to be less worried about this.
First,
if the joint venture doesn't take place,
we just maintain the status quo. And that's two hospitals competing for services. We're not going to lose a hospital in the market entirely.
And second,
in the past, religious and secular healthcare firms have actually collaborated Together in ways that allow the Catholic hospital to stay true to its religious principles while still benefiting from collaborative efforts.
They've basically put in what I call religious firewalls to ensure that Catholic hospital facilities,
funds and employees aren't implicated in impermissible behaviors.
And so because Catholic hospitals, like any hospital,
I think, want to keep providing services to the community,
they also want to make money.
I think they're more likely to pivot to these firewalls that allow them to maintain the joint venture while respecting their religious beliefs.
But, you know, let's just say a firm does draw this hard line in the sand that you're proposing.
Antitrust is going to have to make a difficult choice at that point. You know, does it allow firms to engage in otherwise anti competitive behavior that reduces choice for one group of consumers and then maybe provide some services for others and other service lines?
I don't really think antitrust allows that choice to be made to preference one group of consumers over another.
But, you know, this is kind of pushing the boundaries of antitrust a little bit. And so it's a question worth exploring, I think.
Sari Mithal: Thank you so much for joining us today. I really appreciate you taking the time. So we'll pivot to religious firewalls a little bit later, but in the meantime, I have a question for you.
And so in your paper you mentioned that state AGs are best placed to bring these suits for a number of reasons.
However, given the growing entanglement between religiosity and conservative politics,
are you concerned that states with strong rural and Republican majorities may be especially unwilling to bring antitrust cases against religious hospital systems,
particularly when doing so would require confronting religion's role in market restraints?
And if so, how might this reluctance impact access to care in those already underserved communities?
Bailey Sanders: So I think it's quite likely that Red State AGs, for political reasons,
are going to be less inclined to challenge the sort of restraints I identify in my paper.
That's certainly their prerogative, though. I think the consumers in their states miss out if they don't challenge these restraints and try to promote competition.
But even if we think that Only blue state AGs are going to be interested in combating the behavior I described,
we shouldn't discount how impactful that can be because Catholic healthcare systems are more prevalent in certain areas of the country, and perhaps surprisingly, that includes a lot of blue states.
So Washington, Oregon, Colorado, Wisconsin, Michigan, Maine and New Hampshire all see fairly high Catholic hospital concentration.
And to the extent that systems in those states are engaging in the restraints identified,
then there's a real opportunity for the AGs of those states to advance competition.
And I would note that they're not really just advancing competition for their citizens because we know that consumers from red states are crossing state lines to get care more so than ever at this moment in time, particularly for reproductive care.
And so by promoting competition in blue states, you can benefit from, you know, consumers across the divide. But I do think the short answer is I don't think Red State AGs are reading my paper and thinking, yeah,
I don't. I think that I don't. You know,
I wish they would, but I, I think that's unlikely.
Sari Mithal: Thank you for such a thoughtful answer. To further explore this line of thought a bit more, I'm going to turn you over to Gabe.
Speaker E: Hi Bailey, thank you so much for being with us today.
So following up on Sari's question,
how relevant do you think that the social context of our country is in your legal arguments and, you know, the analysis of how the courts might analyze these cases?
Because it appears to me that religion has played a defining role in many of the recent legal decisions and political actions as well. So how might these current religious context of our country affect these arguments?
Bailey Sanders: Thanks, Gabe. That's a great question.
The religious context of our country is such an important piece of the story here.
So early on when I was writing this project or when I started it, I was debating whether or not I should stay entirely in the antitrust lane and kind of leave the discussion of the First Amendment to the side because after all, I'm an antitrust scholar.
I'm not a common law scholar,
but it just felt disingenuous to write the paper that way. If you want to promote competition in reproductive health care markets in the US I feel like you have to engage with the very important question of religious liberty because religious attitudes permeate this market or these markets in ways that we just don't see in,
in other markets, like for gas or groceries. Right.
And religious liberty is a fundamental value in our society and one that we must and should protect.
So I think it's important to me to make clear that my paper is not meant to be an attack on Catholic health care.
Catholic health systems play an enormously important role in providing health care to Americans.
And moreover, if natural competitive forces led to a natural Catholic health care monopoly,
then antitrust law doesn't have a problem with this.
I'm focusing on two very particular types of restraints that I believe to be anti competitive restraints that restrict consumer choice in these Markets and which aren't justified by any pro competitive benefits that I can identify.
But again, I recognize that we're in a very distinct moment of time. As you mentioned, Gabe,
the Supreme Court has been steadily expanding its conception of the boundaries of religious liberty. And plaintiffs who file religious liberty suits seeking an exemption from generally applicable laws are like, on a real winning streak.
So, you know, I put forth why I think there still need to be market limits on free exercise in this paper,
but I think it's quite possible our conservative Supreme Court majority might disagree.
And so on that note, I think reproductive healthcare advocates have to really weigh the pros and cons of bringing a lawsuit, like the kind I propose here.
On the one hand, if they succeed, they can make a really big difference, but if they fail, they might create some troubling precedent that could hinder access as well. So it's a tricky question.
And religion,
it's, it's a really important part of the story.
Kim Krawiec: I just want to jump in here to point out that I think I was one of the people, Bailey, who encouraged you to focus on only the Sherman act and antitrust questions.
And because the con law stuff is so tricky and in flux and contestable,
and I'm really happy to say that I was wrong. I think you actually do a really nice job of this in the paper. And so I like it when I'm proven wrong about stuff about something like that.
Bailey Sanders: Thank you, Kim. I will say it was a process of getting the right tone and approach to the con law. You know, I, I, my goal is to raise some important questions while recognizing that there are very qualified and esteemed con law scholars who, I would like to know their opinions as well.
Kim Krawiec: Well, hopefully they're, you know, because I'm sure every con law professor listens to the podcast and so I'm sure you'll hear from them.
Bailey Sanders: Great.
Sari Mithal: Thank you so much for expanding on that line of thought, Bailey. So one of our colleagues, Bradley, wasn't able to be with us today, but he had a question for you, which I'll put forwards, which is towards the beginning of your paper, you specifically denote reproductive healthcare access as one of,
if not the principal harm of focus.
Bradley was wondering if your analysis could be reasonably extended to other markets where religious providers might restrict services such as vaccines, gender affirming care, end of life decisions, et cetera.
And have you seen this research? In the process of writing this, he asks specifically because he could imagine a world where maybe the analysis would be stronger were there a broader harm being imposed on the Market or community?
Bailey Sanders: Thanks, Bradley,
for the question.
He, he's raising one that I've gotten before and which has been important to think about as I write. And so, you know, I focus on reproductive healthcare here alone in part because it's my passion.
And also, practically speaking, no one wants to read a hundred page paper,
but I, I, I do think that my analysis could be reasonably extended to other markets where religious providers seek to restrict other services like the ones you mentioned.
And to be clear, Catholic directives. The Catholic directives do impose restrictions on gender affirming care and end of life decisions, although I don't address that in my paper.
But I would say, you know, my paper deals with what your class would call taboo markets,
so they're politically charged. But the antitrust principles I apply are very run of the mill.
That is, I'm not advocating for a change in the law, but rather that we adhere to the core principles of antitrust law and apply them to even those markets that are politically charged and which some people think shouldn't exist.
And in the spirit of disclosure, I'll note that I think my analysis could possibly apply to restraints that I personally might find socially valuable.
So,
you know, companies recently have engaged in efforts to decrease their carbon output in response to climate change,
and I personally want companies to be thinking about the environment.
But I also think it's clear that the antitrust laws as currently written might stand in the way of some collaborations between competitors that are seeking to decrease carbon outputs if it basically ended up being an output agreement,
you know, so it's just,
I think it's very applicable to the services you talk about. It's harder to imagine certain other markets just because this is the most prominent example that I know of.
I think in the future we might see more on vaccines,
for sure.
Religiously motivated restraints on vaccines and the same principle should apply.
Whether or not they get applied, I think is related to how charged the issues are.
Sari Mithal: Thank you for clarifying. I know Bradley appreciated you taking the time to field his question, even though he's not here today.
Shifting gears a little bit to the topic of innovation, I'm going to turn you over to Rachel Duffy.
Bailey Sanders: Hi, Bailey.
So I was really intrigued by the point that you touched on in your paper about how this all stifles innovation and not just output.
So you were arguing that Catholic hospital.
Kim Krawiec: Restrictions don't just reduce output, but also suppress innovation, since secular partners have to.
Bailey Sanders: Also forego new reproductive technologies.
And I was really curious about your points about the impact of these agreements on innovation.
So in markets where Catholic systems dominate, would you say that their restrictions have a negative effect on secular hospitals incentives to invest in these reproductive innovations,
knowing that they may later have to abandon those services because of collaborations or acquisitions?
Thanks, Rachel.
This is an interesting question on the innovation dimension that I hadn't thought about before.
My gut intuition is that while it's possible,
I think it's unlikely that secular hospitals incentives to invest in reproductive innovation is lessened when they're in a market with the dominant Catholic system. And I'm specifically thinking about secular hospitals operating independently from Catholic systems.
So they haven't entered into a partnership like what I examine here.
And in this case, I think economic theory would suggest that the competitive forces between the two would lead the secular hospital to continue innovating in order to deepen the gap between themselves and their Catholic counterpart.
So, you know, they should want to be able to say to consumers like, hey, our competitor only provides A and B, but we provide ABC and this new thing we've invented D.
So you should come over here.
And moreover, I don't think that most healthcare providers are making their clinical decisions based on the possibility that their employer might be acquired or decide to partner with a religiously restricted institution in the future.
I think they are really operating on the basis of patient need in the moment.
But the innovation point, I'm really glad that you found that interesting and intriguing because I really wanted it to come through.
You know, I do think there's an impact on innovation here when as a condition of a partnership or a hospital sale,
doctors have to refrain from providing care that might be prohibited by religious principles.
You know, providers may find their hands tied when it comes to developing new procedures or tackling emerging ones. And what I've seen in the literature, a few examples would be like in the past,
religious hospitals not taking advantage of methotrexate, which is a drug that's used to treat ectopic pregnancies. It basically dissolves the pregnancy and allows the woman to maintain her fallopian tubes and get pregnant again.
But in the past, some doctors were doing full on hysterectomies to avoid providing an impermissible abortion, because if you removed the tube with the embryo, that would constitute an abortion.
I don't really think that's happening anymore. Like the standard of care has just moved so far beyond that, they can't maintain that.
But by looking the past and seeing that kind of delay in advancement, I worry about that repeating itself in the future.
Sari Mithal: Thank you so much for that insight. Shifting or Returning rather to your earlier discussion of religious firewalls, I'm going to turn you over to Mason.
Speaker E: Hi. Yeah, so in your paper you discuss these religious firewalls and these hospitals within hospitals, and I know you touched on them just a little bit and your response to one of our first questions today and how they can kind of work around the demands of the ethical and religious directives.
But I didn't get a sense from the paper if these techniques are really widespread or if they're just isolated to a few specific case studies.
It seems to me that these techniques would allow for more efficient joint ventures and mergers economically, and that it would still allow both parties to perform their full gambit of services whilst also meeting these Catholic standards.
If these techniques satisfy all parties, like, why are they not already more common?
Or better yet, why have they not eliminated a lot of the problems your paper talks about?
Bailey Sanders: Yeah, thanks, Mason. This is a great question.
You know, it's kind of hard to know how widespread these firewalls are because as I discussed in a separate paper,
a lot of times hospitals are not very transparent about the presence of religious restrictions on care. So we don't have a lot of data.
So I honestly don't know how common the firewalls are, though we do have some prominent examples in the literature which I really highlight. You know, as you noted,
I think we can expect that they haven't been used as often,
however,
as we would want,
because in a world where antitrust enforcers and private litigants aren't bringing cases against these restraints,
there's less of an incentive for the Catholic hospital to and its partner to find this palatable workaround.
And all else equal, I think the Catholic hospital would certainly prefer just to see an end to the services it finds immoral rather than instituting a firewall.
It really, in the past, these firewalls have become.
Have come about because doctors and patients, you know, the community at large pushed back and demanded a continuation of care.
And one organization in particular called Merger Watch played a really important role both in identifying hospital mergers in particular that might result in a reduction of care due to religious restrictions and then generating community support to push back and pressure the hospitals to find a workaround.
I really agree with your point, Mason, that this seems to be a missed opportunity. You know, if one healthcare firm can't provide certain forms of care due to religious reasons,
but a firm down the street can,
it's great if they can collaborate to make sure that patients get the care they need. You know, someone shows up looking for Something that hospital A doesn't want to provide.
And they say we cannot help you, but hospital B can and we have an arrangement and go see them.
You know, I, I think that sounds palatable to you and I, but not really probably to Catholic hospitals because they don't think that care is actually medical care. Right. And they actually have restrictions too on their ability to refer patients because there's a belief that they are being morally complicit even if they refer.
So there's a little bit of a roadblock there. Even though from an economic perspective I'm like, we can combine and everyone can be happy.
I think it doesn't work out quite as well as that.
Kim Krawiec: So, Bailey, if I'm understanding your answer, then it may be true that these are first best solutions from an economic perspective, but it is not the first best solution from the Catholic Church's perspective.
Is that correct?
Bailey Sanders: Right.
Cindy Tran: Because.
Kim Krawiec: Because their goal is their primary. Their first goal is something other than economic when it comes to these directives.
Bailey Sanders: Right, right. There are religious first order goals that kind of cloak the whole analysis for them.
Kim Krawiec: Yeah.
Sari Mithal: Thank you for adding to our earlier discussion. Bailey, shifting gears slightly, I'm going to turn you over to Reid.
Speaker E: Hi, Bailey.
On the topic of the motivations of religious hospitals,
you argued that where a religious hospital states a religious rider clause is necessary for the pro competitive ends of a joint venture,
this argument fails because it amounts to a social justification.
So if we can stress test this hypothetical a bit,
what if that hospital could show that entering into a joint venture with a secular hospital without the religious rider would force that hospital's closure, perhaps due to some church body's exclusion of the hospital from certain benefits, or maybe a provable risk of mass boycott.
Would the religious rider still be socially justified in that case,
or would it be necessary for the ventures pro competitive ends?
Bailey Sanders: Thanks, Reid. This is a good pressure test question for sure. And it kind of harkens back up to that tension I was talking about between sometimes when antitrust law is,
you know, trying to promote competition and we may see a decrease.
It's a tough call, but ultimately I think my answer has to be no,
because I think accepting this argument that a religiously motivated restraint is necessary because without it,
a religious firm won't participate in the joint venture or they may leave the market really requires us to expand our definition of reasonably necessary in such a way that it almost becomes meaningless.
To me,
it really feels like we're accepting the argument this is necessary because I say it is.
And I also think it requires us to expand the definition of reasonably necessary in a way that is fundamentally odds with the antitrust law because it grossed encompass social justifications, as I think you kind of note,
not simply pro competitive justifications.
Like it becomes reasonably necessary because the church says it is.
And I don't know how you impose a limit on that. Right.
I recognize that though that can feel wishy washy to some people because was it reasonably necessary to avoid free riding problems? That's usually that's justifiable under the antitrust law. But that just feels we're still more in the world of economics and pro competitive justifications when we're trying to prevent free riding.
But when it's I can't participate because my religion says that I can't,
I think that's unfortunate for the business,
you know, but it's like a self imposed limitation that comes with their faith that they have every right to hold on to.
Kim Krawiec: Bailey, that answer reminds me a little bit, and it may be just because I was listening to a prior podcast in which we discussed Alston, the NCAA case the other day, but it reminded me a little bit of the court's approach there, which was like, yeah, you can't get an antitrust exemption just because you say this is ne.
Like it's circular. Right.
You say this is necessary, but like it's just because you say it.
Bailey Sanders: Right. And the court rejected it.
Kim Krawiec: Yes, absolutely, unanimously.
Bailey Sanders: Like we don't actually believe your argument that it's necessary. You can achieve all the pro competitive effects without it. And that's kind of, that's what I say is happening here. Like you can achieve all the pro competitive effects of these joint ventures without saying to a particular consumer, you can't receive birth control because it's not because it's for contraceptive purposes.
Right. Or you can receive this sterilization because you have cancer,
but you can't because you just don't want to have more children like it. It's just not linked up rationally in my mind.
Cindy Tran: Thank you both for that discussion. I think it's really interesting and worth exploring more. So I'll pass it off to Katherine to ask her question.
Kim Krawiec: Thank you for being here with us today. Bailey, related to Reid's question about social justifications. Your paper makes the point that courts never accept moral justifications anti competitive behavior.
But in both the cases you cite, National Society of Professional Engineers and Superior Court Trial Lawyers association,
it seems that these output restraints were tacitly intended to maximize profits and the court was suspicious of their motives.
Have there Ever been any successful antitrust cases where the restriction on output at issue was implemented for a moral or social reason divorced from profit maximizing behavior?
Bailey Sanders: So I don't know that there are that many cases where you see plaintiffs making just the moral and social argument.
I think profit reasons are always lurking in the background because this is the world of business, so we can usually find some if we look for them.
And moreover, because of the precedents established in the cases you referenced, professional engineers and superior trial court,
a plaintiff is incentivized to make some sort of pro competitive argument rather than simply put forth a moral or social justification. Because if they don't, it's a losing argument.
I mean, we do know that plaintiffs still try to frame their actions as promoting some other social good.
And one case that came to mind is actually one that Kim knows well, that would be Kamakahi, the American Society of Reproductive Medicine.
And in that case, class of egg donors sued the American Society of Reproductive Medicine because it had instituted a policy whereby its members in fertility clinics could not pay egg donors more than a certain amount of compensation for their eggs.
So it was basically a salary cap or price fixing.
And in their first reply brief to the plaintiffs, ASRM argued that the challenged agreement pursued legitimate professional goals instead of increased profits for association memberships.
They were trying to argue this agreement was not about profit, but ethical concerns.
And I do think it's plausible that some of the members on that committee were just thinking of ethical concerns and weren't really thinking about the bottom line.
Kim Krawiec: But I actually think all of them were Bailey like from discussions with them, and there were lawyers on the board and not to criticize them, but they were not the type of lawyers that you and I might be.
And I really do think that the notion of profit and antitrust concerns were not at the forefront of their discussion.
Bailey Sanders: I find that totally believable because, you know, as research has shown, people on the market for egg donation, you know, they color it, they think of it as like kind of divorced from normal market principles because of moral attitudes.
And so you could say like this was an anti compev restraint that largely came into being because of people thinking about ethics and not thinking about legal liability.
But they still ended up settling rather than take the case to trial because they recognized they weren't going to win the antitrust laws, arguing that they were basically engaging in price fixing, but for moral reasons.
And I'll, you know, I'll note here that I think one reason among several that we haven't seen cases brought against the restraints that I look at here is, is maybe because there's a similar assumption about motivations, you know, an assumption that the religious firm is operating purely on religious principles.
And one goal of my paper was to tease out why that there are also profit maximizing reasons that could explain behavior. And even if the behavior is taking place purely for religious reasons, there's still market harms that antitrust doesn't want to occur.
Right.
There is evidence in the literature of religious firms kind of bending their religious doctrine to pursue financial benefits like putting the IVF facility off campus so they can still get money but adhere to the directive.
So I'm personally,
you know, I think there's profit motives and religious motives, but that's because I'm the person that likes to peer past into these markets. Just like him.
Kim Krawiec: People have an amazing capacity to align their beliefs with their self interest. Right. I mean, it's like, so they don't have to be separate, they are frequently found together.
Bailey Sanders: Right, right. So, you know, it's, it doesn't have to be one or the other.
And for antitrust law, at the end of the day, I mean, we are focused on the harm to the market. And I'm trying to say, look, there's harms occurring,
so we really shouldn't allow this.
Cindy Tran: I think that's why looking at this market through an economic or antitrust lens is so interesting. So building on that, I'll pass it to Rachel Greenbaum to ask a related question.
Bailey Sanders: Hi Bailey. Thanks for being with us today.
So part of your argument is this distinction between a religious entity's right to unilaterally refuse services and decision to enter into anti competition competitive agreements that limit not only themselves but also other entities.
Can you explain why this distinction is so critical? And can you elaborate on why one is allowed and the other one should have market limitations in order to protect fair market competition?
I love this question, Rachel, because I can get on my soapbox. So thank you for bringing the box out for me.
I think this question gets at such an important part of the paper and antitrust law, the synergy that I see. So antitrust law in general does not prohibit unilateral behavior on the part of market participants.
It only really starts to care about what a single firm is doing when that firm has generated enough market power to start disrupting the flow of competition. Is it a monopolist or does it have a dangerous probability of becoming one?
Otherwise, antitrust law tends to think that unilateral behavior is unlikely to cause much harm, whereas it's very suspicious that if the government gets involved prematurely and starts regulating firms, that that's going to muck things up.
Oh, and and to be clear, though, the Sherman act does prohibit agreements between competitors, because then we're really not letting competition flow naturally.
And I just, I, I think this distinction between unilateral and concerted behavior is really important when we're thinking about religiously motivated restraints that restrict consumer choice.
You know, the First Amendment historically is about protecting your right,
my right to pursue our faith untrampled by the government.
But religious freedom doesn't operate in a vacuum,
and sometimes it can bump up against other important rights and interests.
And historically, the Supreme Court has resolved this conflict by thinking about third party harms,
that is whether providing a religious exemption to one individual or group will significantly impinge on the interests of third parties.
In my article, I don't dispute the Catholic hospital's right to provide healthcare in accordance with their deeply felt religious beliefs.
Nor would I argue that a Catholic hospital that obtains monopoly power through fair and rigorous competition has done anything wrong.
And that's true, even though I personally would wish that they would provide a full range of reproductive services because they have a right to believe what they believe and to operate their businesses accordingly.
But I do take issue in my paper when a Catholic hospital seeks to impose restrictions on care at a secular competitor through contract.
Because here we're no longer just looking at the issue of the Catholic hospital's right to provide care in accordance with its own values.
Now we have a religious firm seeking to force another secular firm to deny health care to third parties,
consumers who are not presenting at a Catholic hospital for care.
We seem to be getting out of the realm of protecting a Catholic hospital's sincere religious liberty rights and into the realm of imposing upon consumers rights to access care.
Consumers, I might note, who may have their own religious reasons for seeking care that the Catholic Church forbids.
And so that's why I think the unilateral concerted action distinction is very important and actually shows a really nice synergy between antitrust's approach to unilateral versus concerted action and the First Amendment allowing you to do you and your bubble and only starting to think about restrictions when you get out of your bubble and start imposing on others.
Cindy Tran: Thank you, Bailey, for explaining that. I think that's a really important point.
And continuing on that, I'll turn it over to Kendall, who has a question about the reasoning of supporters outside the hospital themselves.
Hi Bailey.
Kim Krawiec: Thanks for joining us today.
I'm curious about what types of justifications, if any, for Catholic hospitals. Naked restraints. Have you heard from supporters who have no affiliation with the hospitals?
So in other words, they don't work for or represent either the Catholic or secular hospitals in question.
And what tends to be their reasoning for supporting these arguments? Is it being pro religious or is it on pro contractual freedom grounds?
And do they discuss the promise of these restrictive agreements for other religions in the healthcare market?
Bailey Sanders: Great.
Yeah. I'll note that most of the responses I get to people who I would say aren't in the know are like, what?
That's happening? That doesn't sound great.
But one common justification or pushback I do get is like this question.
Don't these restraints lead to an increase in Catholic healthcare facilities and thus more choice for consumers who want Catholic healthcare?
So there's an attempt to sort of put it,
put this behavior into a pro consumer perspective.
And my answer to that pushback is twofold.
Again, is to note that antitrust takes no stance on whether Catholic health care is in and of itself desirable.
It consumers demand Catholic health care and secular hospitals are pressured by competitive forces to start providing healthcare funneled through religious doctrine.
Antitrust law is going to say, well, that's what the market is demanding and we want the market to just work itself out.
But that's not what's happening in the scenarios that I focus on. Instead, we have two private firms entering into an agreement where one firm is agreeing to cease or reduce output according to the other firm's preferences and not in response to market forces.
So we might see some consumers see an increase in choice if it's very important to receive care funneled through Catholic doctrine.
I'll note that the evidence suggests a very small percentage of consumers are looking for that. Not zero, but quite small, like 2% or less.
But this increase in choice is coming through anti competitive means and anti competitive means that reduce choice for other consumers.
And so that's why I don't find that pushback compelling.
And I think you might have noted the presence of other religious actors in the market.
I focus on Catholic healthcare here because they really are the most prominent and the most numerous and they're the most organized because of just the hierarchical nature of that religion.
And so we've got the United States Conference of Bishops that have put together the directives and all Catholic hospitals follow them.
The other religious hospitals exist in much smaller numbers. They're more decentralized. They're kind of making their own way individually.
And they don't all impose religious restrictions on care.
So this context that I'm looking at is pretty unique, I think.
Cindy Tran: Thank you for distinguishing that. I now wanted to turn to the policy side of things, so I'll hand it over to Buddy.
Bailey Sanders: Hi, Bailey.
Speaker E: This is a quick question. On page 17,
you noted a question regarding whether Section 5 of the FTC act can be used to promote access to reproductive health care. In a paper that you're currently working on with the FTC's unfair methods of competition policy,
how do you fit those puzzle pieces together?
Like, what limitations and issues might section 5 enforcement face that would differ from those that are currently experiencing the Sherman Act?
Bailey Sanders: Great. Another question where I can get on my box,
though? This is like the box of related projects that you always want to talk about.
So as I was working on this religious writer paper,
I realized that these restraints are just one part of the story.
Another part of the story has to do with disclosure.
Most hospitals operating under religious restrictions don't disclose these restrictions to consumers beforehand.
And this means a lot of consumers don't find out about restrictions on care until they're denied care.
And then sometimes it's too late to go elsewhere and they're kind of stuck.
This is a practical problem, but it's also a problem for antitrust law and consumer protection law because both take the stance that consumers can best protect their interests in the market when they're fully informed.
So we could get rid of the output restraints that I identify in this paper, but we're still going to have a problem because consumers don't have all the information they need to make an informed choice about where they want to seek health care.
And so,
you know, I started thinking about what could Section 5 of the FTC act have to say about this?
And so I'm considering whether the failure to disclose religious restrictions on care can constitute not only an unfair method of competition, but also an unfair practice or a deceptive practice.
And I'm still working through those ideas at this point in my thinking, I actually think the strongest arguments are for a claim under the unfair or deceptive practices prongs and not the unfair method of competition.
But don't hold me to that, because I'm still writing.
But to the second part of your question, there are unique challenges that come into play with Section 5 enforcement, and namely, private plaintiffs can't sue under Section 5. Only the FTC can bring a case.
And I think it goes without saying that the Trump administration is very unlikely to bring a Section 5 case targeting religious hospitals for not disclosing their restrictions. On care.
And I think even maybe a blue administration might be hesitant to do so given the religious nature of the case.
So I'm also exploring whether state level consumer protection statutes might be a viable path forward because most of those allow private plaintiffs to bring suit.
So that paper's a lot of fun right now, but it's in progress.
Cindy Tran: Yeah, I think the lack of disclosure is a really interesting point because after reading your paper, I realized I've been to hospitals that were most likely under the directives, but I had no idea.
So it'll be interesting to see if and how this could potentially lead to lawsuits as well.
So lastly, I'll turn it over to Denise, who wanted to ask a question about how the current Supreme Court's approach might shape the future of this market.
Bailey Sanders: Well, thank you so much for being here, Bailey. Towards the end of your paper, you made some recommendations for litigation and how this topic could be advanced moving forward.
My question in light of that is that we've seen that the Supreme Court has a strong inclination to prioritize religious freedom above maybe other rights and regulations. So if the Supreme Court decides that the Sherman act can't be relied on to limit the anti competitive nature of religious and partnered secular hospitals,
what do you think the future for this industry looks like? And do you think that the increase in religious hospitals that we've seen over the last few decades will level out or do you think that their growth will continue if unchecked?
Thanks, Denise.
This is a looming question over my project and I'll say when con law people read it or listen to presentation, they're like,
it's doomed.
The Supreme Court's not going to side in your favor. You know, they're not going to buy your argument. And the antitrust law people are like, no, this is, you've got to hold strong.
So you're, you know, there's two very different perspectives. But assuming, you know, that the Supreme Court were to basically provide a religious exemption to the Sherman Act, I think is what you're getting at, what would happen?
And I think that would blow a major hole into the Sherman act as a doctrinal matter.
It would incentivize firms to justify all sorts of anti competitive behavior on the basis of religious belief. I think,
and there's no reason to think that it would be limited to the healthcare industry,
though I think we would see it there first.
But focusing just on healthcare,
I think such an exemption would result in very poor outcomes for reproductive healthcare consumers over the long term.
I don't think we'd see a leveling off in the number of religiously restricted hospitals, but likely see an increase or perhaps a faster increase than we might see otherwise.
So from my perspective, the future would be kind of dim if a religious exemption was incorporated into the Sherman Act.
And I'm hopeful that the court could be convinced that that's not what we want to do. And I'll note one, you know, I make an effort in my paper in the section where I raise religious liberty arguments to note that there are religious liberty interests on both sides here.
So the right of Catholic hospitals to operate in accordance with their values, but also the right of consumers to seek healthcare in accordance with their values. And so,
you know, I hope that the court could see that and understand that there are people on both sides who have religious liberty rights. And I actually think the Sherman act balances these two groups of religious interests by focusing just really on unilateral behavior and only starting to say no,
that's not allowed when one firm's religious beliefs start to impede consumers ability to access care in other facilities.
So that's my hope. I may be naive.
Kim Krawiec: Thanks, Bailey.
So, first of all, I just want to say congratulations on this project. I think it's really,
you did a great job with it. I'll just say that I might be a little bit biased, you know, but,
but I'm, I hope you're, you're pleased with it.
We've got a couple of minutes left before closing. Do you want to talk about any other projects you're working on either related to this one or not?
Bailey Sanders: Sure, I actually have. I should have mentioned in an earlier response to a question that a white paper that I co authored with Barack Richmond from GW and then staff at the center for American Progress dropped this week on this topic thinking about antitrust's potential for protecting competition and reproductive healthcare.
Kim Krawiec: My favorite antitrust lawyer. Except for you, Bailey.
Bailey Sanders: Barack.
He's great.
And I, I do Preview my Section 5 arguments a little bit in there for people who are interested. And then we also think about mergers and non compete provisions a bit and so forth.
Those who've, whose interest is piqued, they should go check out that white paper.
And then I'll just say one question I get a lot with this project is, you know, why haven't any cases been brought against these restraints? Like, you make it sound so obvious that a problem is occurring.
So why hasn't anyone done anything? And I'm like, yeah, that's a really good question because that's what motivated me in the start, I was like, this looks anticompetitive.
What am I missing? And I was like, I don't think I'm missing anything. I think it is.
And so I have a project plan that's. It's in progress, but it's.
I'm looking at the political,
ideological, and doctrinal reasons why we haven't seen these cases brought.
I think there's a whole host of competing reasons that are super interesting. I get a into it a little bit in this paper talking about dead weight loss and consumer antitrust standing to bring these cases.
But this next project, I'm also kind of going back in time and looking at feminist health clinics that brought antitrust lawsuits and kind of thinking about why that trend didn't continue.
So that that paper is very early in its conception, but it might be the one I'm most excited about.
Great.
Kim Krawiec: Thank you. Well, and maybe some plaintiffs lawyers are listening today, and you won't have to answer that question anymore because they'll bring a suit.
So, Cindy and Sari, any last minute closing thoughts from you guys?
Sari Mithal: No, nothing for me. Just a thank you for taking the time to speak with us and for really being so thoughtful about how you answered each and every one of our questions.
Cindy Tran: Yeah, thank you so much, Bailey. I learned a ton, and I'm looking forward to reading your latest white paper and also your current project addressing the various obstacles standing in the way of these possible lawsuits.
So thanks again for answering all of our questions.
Bailey Sanders: These were great questions that really made me think, and I just,
as most academics, I love talking about my research.
So this has been a very enjoyable hour on a Thursday.
Kim Krawiec: Thanks so much. Well, it was great to see you, Bailey.
