[UPDATE:  Here is a link to a good article on the case in American Prospect (HT Rick Garnett).  I think it does a nice job of laying out some of the problems with the ACLU's legal theory. Most notably, it's not clear what authority the USCCB directives actually have for Catholic hospitals (as opposed to, say, the "directives" of the local bishop).]  

The Times reported today that the ACLU has filed a lawsuit on behalf of a woman who received medical care from Mercy Health Partners, a Catholic hospital in Muskegon County, Michigan. The plaintiff, Tamesha Means, was 18 weeks pregnant when her water broke.  She went to Mercy, where she was sent home.  According to the complaint (and news reports), when a woman's water breaks so early in the pregnancy, the fetus has almost no chance of survival.  Failure to induce labor at that point, the complaint alleges, exposed Means to risk of infection and serious health complications.  In fact, Means returned to the hospital the next day bleeding and having painful contractions.  She was again sent home.  She returned a third time with signs of an infection.  As the hospital prepared to send her home a third time, she miscarried.  At no point -- apparently -- was she notified that, as a Catholic hospital, Mercy refused to provide certain treatments that would be available at non-Catholic facilities. (Mercy is the only hospital in the county.)

Means alleges that the USCCB is responsible for any excess pain and suffering she experienced as a result of the hospital's failure to offer her the option of terminating her pregnancy or to send her to a non-Catholic facility that would counsel her regarding that option.  According to the complaint, the hospital's behavior in this regard was mandated by the USCCB's Ethical and Religious Directives for Catholic Health Care Services.  

If the standard of care Means received fell below the requirements of tort law and if a court agrees that the USCCB is a proper defendant in this case, the USCCB will certainly argue that it is entitled -- as a matter of religious freedom -- to craft directives for Catholic hospitals that are consistent with Catholic teaching about abortion.  This claim will run into the counterargument that applying (as a matter of tort law) a different standard of care for Catholic hospitals -- particularly when they are treating non-Catholics and failing to notify them about the ways in which Catholic doctrine might put them at risk -- amounts to government endorsement of religious doctrine, in violation of the Establishment Clause.

A similar tension between these two aspects of religious freedom is gaining attention in connection with the Hobby Lobby case, which the Supreme Court agreed to hear last week.  In that case, a for-profit corporation owned (through a trust) by Christians who oppose abortion is challenging the Obamacare contraception mandate on the grounds that their religion prohibits them from paying for insurance that provides certain contraceptives to their employees (those that the plaintiffs consider to be abortifacents).  The case has led some commentators (see, for example, this essay by law professors Nelson Tebbe and Micah Schwartzman in Slate) to argue that granting certain exemptions to companies like Hobby Lobby may place an unfair burden on their employees -- in the case of the contraception mandate, the need to go out and procure their own contraception coverage.  This is a burden that those working for similarly situated (but nonreligious) employers do not have to bear and may lead the exemption to run afoul of the Establishment Clause.

Claims brought by mainstream religious groups that are broadly engaged with the wider society seeking exemptions from generally applicable regulation  seem to be becoming more common.  These sorts of claims raise the question of harm to third parties in a more visible way than the somewhat more diffuse costs associated with the granting of exemptions to relatively insular religious minorities.  As mainstream religious groups become more assertive about their entitlement to exemptions, I think we can expect to see more complaints like Tamesha Means's in the future.

Eduardo M. Peñalver is the Allan R. Tessler Dean of the Cornell Law School. The views expressed in the piece are his own, and should not be attributed to Cornell University or Cornell Law School.

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