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ACLU v. USCCB

[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.

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The bishops should talk to the Quakers, who have a long history working out how to act on their conscience. Unlike the bishops, they adapt their actions to avoid conflicts rather than expecting that they get exceptions for any law they object to.

Perhaps I'm expecting too much from media reports, but none of the media reports I read about this lawsuit quoted the exact wording of the relevant USCCB document that supposedly led the Michigan hospital to act the way they did.

Has anybody else seen a media report about this case in which the exact wording of the relevant USCCB document has been reported?

It's not only women's reproductive health stuff, but also end-of-life stuff too ...  http://www.bioethicsinternational.org/blog/2010/02/10/bishops-change-fee... ...  many people who aren't Catholic and don't share the philosophies enforced by the bishops, but have no other choice but to go to Catholic hospitals. 

 Not sure if this is what you mean, Thomas.  This is from Part Four of a 2009 PDF.  

http://www.usccb.org/issues-and-action/human-life-and-dignity/health-car...

Ethical and Religious Directives for Catholic Health Care Services

Fifth Edition

United States Conference of Catholic Bishops

47. Operations, treatments, and medications that have as their direct purpose the cure of a proportionately serious pathological condition of a pregnant woman are permitted when they cannot be safely postponed until the unborn child is viable, even if they will result in the death of the unborn child. 

It seems to allow whatever should have been done to help that woman immediately.  (As the man, Haas, said in the NYT article.)

----

(Interesting, imho, to see that items 39 - 42 forbid the "donation" of eggs and sperm, a topic that was discussed in the grotesque "Designer Babies" thread.  https://www.commonwealmagazine.org/blog/designer-babies   I wonder whatever happened to "Amanda" and the eggs.  She said the superfluous ones would be "adopted out.")

"certain treatments"???

The fact that you can't even say the words, Eduardo, makes the case against you.

Federal courts will tread very lightly in this area, and for good constitutional reasons. Prediction: the complaint will be dismissed for failure to state a claim.

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.  ... As mainstream religious groups become more assertive about their entitlement to exemptions, 

I'm confused ... what "claims" are being brought by a "mainstream religious group" in this case? Unless the ACLU, who seems to be the claimant, is a "mainstream religious group"?  Which "generally applicable regulation" was not applied by the USCCB in this case?  

In the 67th paragraph of the complaint, the ACLU's lawyers quote the directives as follows:

Directive 45 states: “Abortion (that is, the directly intended termination of pregnancy before viability or the directly intended destruction of a viable fetus) is never permitted. Every procedure whose sole immediate effect is the termination of pregnancy before viability is an abortion, which, in its moral context, includes the interval between conception and implantation of the embryo. Catholic health care institutions are not to provide abortion services, even based upon the principle of material cooperation. In this context, Catholic health care institutions need to be concerned about the danger of scandal in any association with abortion providers.” 

 

As the medical, not legal, case has been presented, I wonder if the destruction of the fetus was indeed the _sole_ effect of the procedure being contemplated. That aside, the ACLU's argument seems to be that the USCCB's prohibition of "material cooperation"--i.e., referring patients to abortion providers--is beyond the pale. Such a position, if upheld, would force Catholic hospitals to, in effect, help arrange, if not perform, abortions. Forcing them to make abortion referrals would be forcing them to engage in speech they find unconscionable. Considering the ACLU's long history of arguing that no one may be forced to engage in speech they find objectionable--even if it is something as trivial as saying the pledge of allegiance--I cannot say that I find their position entirely consistent. 

 

I don't know all the facts of the matter; but it appears to me that the ACLU is trying to make the USCCB the Taliban-like villain of this case, when in fact Ms. Means seems to be a victim of plain old negligence and medical malpractice. I mean, if someone showed up with a miscarriage in progress, shouldn't the hospital have at least kept her around to monitor the situation, try to manage her pain, administer antibiotics, and try to prevent hemorrhage if possible? Instead they left her on her own.  I wonder if she had insurance and if that had anything to do with her treatment or lack of it.

Is it considered an abortion to induce labor after a woman's water breaks? Wouldn't she be considered to already be in labor in that event?  Maybe I'm being obtuse, but this doesn't seem to me to be an abortion. 

 

Thanks for the passage you quoted, Gerelyn.

Yes, I did see what Haas said in the NYTimes article.

From the passage you quoted, it appears that the USCCB lawyers will use it to argue that the USCCB should not be held responsbile legally for what happened to the woman in the Michigan case.

Thank you for the link, Crystal.  The directive is somewhat frightening to those who do not wish to end their days hooked up to tubes for months or years when comatose. There is no human dignity in that kind of mechanized, artificial life. I really don't understand the difference in that and this

 We mustn’t all die with tubes,” said John Haas ....” Church members may refuse interventions they deem excessively burdensome.

For instance, someone with advanced kidney failure is not obligated to pursue dialysis, said the Rev. William Grogan, a health care adviser to Cardinal Francis George. Someone who has lost the ability to breathe is not required to use a ventilator.

If someone who cannot breathe on their own is not "required" by church "ethicists" to be forced to accept a ventilator, then why is someone who cannot eat or drink on their own and is not conscious and has already stated in an advanced directive his/her desire to not have the physical body's life prolonged unnaturally through burdensome tube-feeding not accorded that right by these men who are definitely failing to respect their human dignity by forcing mechanized feeding?

I guess that when there is a choice, we should choose not-Catholic hospitals.

Irene, from what I have read, if the fetal heartbeat was strong and proper care given, there would be a small chance at 18 weeks for the baby to survive long enough to be born.  But this small chance would require proper medical care - the standard course would have been to order complete bed rest and bring in a high-risk specialist to monitor the pregnancy.  The hospital did not do that.  Katherine mentioned medical malpractice - that is possibly what happened in this case and someone also asked if she had insurance. That would be interesting to know as it seems that sending her home was absolutely the wrong thing to do. I was sent to the hospital by my OB with a miscarriage in progress at 11 weeks (no chance for fetal survival at that stage) - they kept me in bed in the hospital for four days, sending me home finally after being sure there were no signs of infection although the miscarriage had not yet completed.  I did miscarry a few days later, at home, anyway, but it wasn't due to medical negligence.

 

Assuming the first paragraph of Eduardo's post does not contain a misrepresentation of the facts of the case (and I assume that is true) the debate over what I'll call "God's will" is specious beyond words.  This is nothing more or less than an example of gross negligence and truly stunning malpractice.  The remarkable and pervasive advances made in medicine in the last century have in no part relied upon anything remotely resembling a special group's special opinion. 

If a group of individuals convinced they and ONLY they have the ear of God than they have become the embodiment of the limitless arrogance that is at the core of all consumate evil.    This group of "physicians" had all the power and none of the charity.  The Hippocratic oath trumps even the most popular of grandiose illusions. Why?  Because it deals with the reality at hand and makes the perfectly reasonable assumptioin God does not have favorties among mere mortals.  Sweet Jesus, can any of you even suggest St Francis would have so much as considered acting in ways so utterly callous?

More and more, pressure is sure to be brought to bear on Catholic hospitals, and ultimately I think the ACLU will win and many Catholic hospitals will be sold off.  

This sort of pressure will become greater as the US ultimately moves toward a centralized, single-payer (federally-run) healthcare system.  

It might be for the best, as the local diocese probably needs the money anyway.

 

 when in fact Ms. Means seems to be a victim of plain old negligence and medical malpractice.

That was my take as well.  Sounds like a good reason to sue the hospital.  Why didn't she?

 

Is it considered an abortion to induce labor after a woman's water breaks? Wouldn't she be considered to already be in labor in that event?  Maybe I'm being obtuse, but this doesn't seem to me to be an abortion. 

Irene - that was my thought, too.  This is a situation in which the only facts known are whatever 'facts' the plaintiff's attorney chose to include in the filing.  The defendants have declined to comment.  

 

How 'bout the ACLU save themselves and the bishops a lot of money on lawyers and open up another hospital in Muskegon county?

Anne- I'm very sorry for your loss.  I never knew that delivery could wait a few weeks after one's water breaks. It doesn't sound like the hospital took very good care of this poor woman.

Irene, thank you. It was very upsetting at the time, but it was many years ago and  a year after that miscarriage I became the mother of the first of my three (now adult) children.  I wonder if they would have kept me so long in today's hospital environment,  given the insurance situation today,   I have heard that they usually keep women at least overnight and maybe longer in cases like this, especially after the first trimester - 18 weeks is well into the second and there is at least a statistically measurable possibility that with proper care  there would have been a chance.  However, the chances after the water breaks partly depends on whether or not all the amniotic fluid was lost or only some. I haven't read enough about this case to know the details.

In addition to the text of the directive, the way it is enforced also matters. Given that the bishops condemned Margaret McBride for permitting an abortion to save a woman's life, would anyone expect them to approve an abortion merely to prevent a few days of suffering.

Directive 47 wasn't enough to save St. joseph's Hospital in Phoenix from being stripped of it's recognition as a "Catholic" hospital. - and the sister who approved the surgery from being excommunicated by the Bishop.  

According to the medical directives that the hospital follows, abortion is defined as the directly intended termination of pregnancy, and it is not permitted under any circumstances - even to save the life of the mother.

 

On the other hand, a second directive says that "operations, treatments and medications that have as their direct purpose the cure of a proportionately serious pathological condition of a pregnant woman are permitted . . . even if they will result in the death of the unborn child."

 

A letter sent Monday from Catholic Healthcare West, signed by Sister Judith Carle, board chairwoman, and President and CEO Lloyd Dean, asks Olmsted to provide further clarification about the directives. Agreeing that in a healthy mother, pregnancy is "not a pathology," it says this case was different. The pregnancy, the letter says, carried a nearly certain risk of death for the mother.

 

"If there had been a way to save the pregnancy and still prevent the death of the mother, we would have done it," the letter says. "We are convinced there was not."

 

James J. Walter, professor of bioethics at Loyola Marymount University in Los Angeles, a Catholic university, said a pregnancy may be terminated only in limited, indirect circumstances, such as uterine cancer, in which the cancer treatment takes the life of the fetus.

 

Catholic teaching, he said, is that a pregnancy cannot be terminated as a means to an end of saving the life of a mother who is suffering from a different condition.

 

Asked if the church position prefers the mother and child to die, rather than sparing the life of one of them, Walters said the hope is that both would survive.

 

Read more: http://www.azcentral.com/news/articles/2010/05/15/20100515phoenix-cathol...

if I reacall correctly, the hospital retained a theologian who prepared a lengthy analysis (including citations from Germaine Grisez, i believe) concluding that the hospital had acted correctly - but that was rejected by the Bishop. 

 

There are similar difficult to explain positions in the directives such as that, in the case of an ectopic pregnancy, a fetus can be removed indirectly by cutting out and removing the section of fallopian tube which contains it, but not by removing it directly by medication.  

 

The USCCB really needs to clarify some of these recurring issues - as well as the feeding tube business.

Agree, John, that 47 didn't help in Phoenix.

Imho, another problem is that however detailed the bishops make their directives, the actual patient is in the hands of actual admitting clerks, nurses, doctors, aides, etc., who may know little or nothing about the directives but know they are to answer certain questions by patients in a certain way.

E.g., when checking into a Catholic hospital (a Mercy one), I was asked if I had end-of-life directives, living will, etc.  Yes, I said, and I asked her if they would be honored by the hospital.  Yes, she said.  

But, as I was about to go into surgery, I asked my doctor if she was prepared to follow my directives in case of emergency.  "This is a Catholic hospital," she said.  "We're required to do . . . " X, Y, and Z.

REGARDLESS of what you, your family, your lawyer, have stated and signed, you are now at the Mercy of a bishop. 

I am perplexed by this story as well. Like Katherine Nielsen and Jim Pauwels, it seems to be a case of negligence, if in fact the woman's claims about her treatment are true. We haven't heard the other side, so it's hard to make any statements about this case. But there is nothing that I see in the complaint that alleges that the directives called for her to be sent home with a threatening condition and no medical treatment.

Moreover, this is one case. How does that call into question the entire Catholic medical system in this country? Catholic hospitals all over the place have systems in place for referring patients to places where they can procudre procedures that a Catholic hospital won't provide.

Even if this woman received improper care, what is the implication for the rest of Catholic health care in the country? I don't get the connections.

A few months ago, there was a discussion of the fetus as an "innocent aggressor" led by Charles Camosy over at "Catholic Moral Theology" 

http://catholicmoraltheology.com/from-the-honest-question-file-could-a-p...

it's worth reading, if only to see the difficulty of sorting out the competiing interests.

Mr. Gibson, agree.  Given the on going mergers and acquisitions, Catholic hospital systems often find themselves as the only hospital in a county and thus serve dual roles - catholic hospital but also county hospital.

My experience with one catholic hospital system (CHRISTUS Health System) carefully provides for processes and access where they have hospitals which serve as the county hospitals.

Here is some more background on this specific case (altho, Zagano is so anti-abortion that she is biased):  http://ncronline.org/blogs/just-catholic/adventures-feminism

To Mr. Gibson's point:

-  here is a Zagano line:

"Some conditions, such as pulmonary hypertension -- as in the famous Phoenix case a few years back -- are not necessarily treated by abortion. In fact, in 2010, a British journal article reported successful treatment in 10 of 10 pulmonary hypertension pregnancies, and healthy babies were delivered."  (unfortunately, medical conditions are so personal that her assumption may be way off)

- she alludes and makes an assumption that this case is trying to copy the famous and recent Irish case that led to a new abortion law in Ireland

 

The implications are like those of the case in Ireland, aren't they?  (http://www.huffingtonpost.com/2012/11/14/savita-halappanavar-death-irish...)

If being a Catholic hospital gets in the way of care that would otherwise be given, then I would think that is both cause for concern and for a suit.  Why should Catholic hospitals have the right to impose their beliefs on everyone to the detriment of their health?

Why should Catholic hospitals have the right to impose their beliefs on everyone to the detriment of their health?

I believe they should have the right to refuse to perform procedures that are contrary to their religious beliefs.

in the USA, that right of refusal is protected by several federal laws, which are listed here:

http://www.hhs.gov/ocr/civilrights/faq/providerconsciencefaq.html

But when a person goes to a hospital with a health problem, especially when they may have no other choice but to go to that hospital, and their care will then be limited by the religious beliefs of a particular denomination of a particular religion, then the rights of the patient as a citizen of a pluralistic society are curtailed.  How acceptable would it be if some other religion with beliefs most people don;t share ran a large percentage of the hospitals in this country in which those beliefs were imposed on patients?

Plus I should add that the belief the hospital was following (that abortions cannot be peformed) is a belief not even shared by a majotrity of Catholics, much less a majority of Americans.

Crystal is right - where do the hospital's religious rights end and the individual patient's religious and moral rights begin?  Catholics are only 23% of the entire population - the vast majority of Americans believe that abortion should be legal, and even those who don't like abortion on demand support the right of abortion to save the life of the mother.

Perhaps it's time for the Catholic church to get out of the hospital business, especially in regions where they are the only choice available to the citizens.   I would certainly avoid a hospital that was run by Jehovah's Witnesses if the hospital and staff would not give a needed blood transfusion because it is against their religious beliefs.  And I very likely would avoid a Catholic hospital if I was facing a critical health condition that would likely lead to a natural death unless someone prolongs the life of the body artificially by forcing mechanized feeding and hydration on me.   I wouldn't want to take the chance, so if a not-Catholic hospital was available, I would go there.

It's against Catholic theology /ethics to perform abortions or to have abortions performed.Hence the provision for a hospital to be licensed which has the phrase that "all medical procedures that are morally acceptable" must be presented as options to a patient,  clearly exempts abortion.The case should be thrown out because a Catholic hospital is entitled to consider abortion outside the posssibility of  morally acceptable" practices".Let the Deptment of Justice intervene to demand states prrovde more secular hospitals   if govenent believes people are being adversely impacted by Catholic hospitals .It's not an issue for Catholics as we appose abortion..

Itr's one thing to sue the hospital for malpractice for repeatedly sending her home in pain after she clearly was having a miscarriage or serious complication of pregmancy, but to sue the Catholic Bishops because Catholic hospitals are prohibited from  recommending   or performing abortion -is religious persecution.

It's kind of shocking for a legal post and its  commenters to completely fail to mention that this case is nothing more than a penalty on free speech, and to instead characterize it as religious people seeking to be exempt from laws that apply to everyone else. In this situation the USCCB did absolutely nothing more than speak a view against abortion in hospitals that wish to be called Catholic.  It doesn't own or control those hospitals. Making it a tort to speak against abortion is as pure of a free speech violation as can possibly be imagined.  It isn't a religious person seeking an exemption.  Describing this as a religious exemption case makes it seem unfavorable. But the case itself, as a speech issue, is completely absurd in America. Failing to observe that absurdity stacks the deck against the religious defendant. 

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About the Author

Eduardo Moisés Peñalver is the Allan R. Tessler Dean of the Cornell Law School. He is the author of numerous books and articles on the subjects of property and land use law.