The ACLU Takes on the Bishops

Tragedy Leads to a Misguided Lawsuit

On November 29, 2013, the American Civil Liberties Union filed a federal lawsuit on behalf of Tamesha Means in the Eastern District of Michigan. The lawsuit demanded compensatory and punitive damages for medically negligent treatment she allegedly received in the course of her pregnancy and miscarriage at Mercy Health Partners (MHP), a Catholic health facility in Muskegan. The plaintiff suffered from a decreased volume of amniotic fluid caused by the rupture of her amniotic sac. Means claims that MHP did not inform her that this situation would be lethal for her unborn child and could be seriously harmful to her if not treated appropriately.

Of course, medical malpractice lawsuits are not uncommon in the United States. What makes this case unusual is the identity of one of the defendants: the U.S. Conference of Catholic Bishops. The alleged negligent act: promulgating the Ethical and Religious Directives for Catholic Health Care Services.

According to the complaint, the USCCB is responsible because it “directed the course of care Plaintiff received” from MHP. According to the plaintiff, Directive 27 does not require Catholic hospitals to disclose the option of a “previability pregnancy termination,” because (she claims) the church does not see it as morally legitimate. The plaintiff also blames Directive 45, which prohibits abortion. That directive reads: “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.” The plaintiff contends that Directive 45 prevented MHP from either completing the miscarriage or referring her to a place that would do so.

But has Means identified the right defendants? Contrary to popular belief, the USCCB does not have the power to tell individual bishops—or Catholic health-care systems—what to do and what not to do. The conference promulgates the directives as an abstract set of norms applicable to Catholic hospitals. But it lacks the power to make them operationally effective. When it comes to canon law, the local bishop has the authority to enforce and interpret the directives in his diocese. But when it comes to secular law, what makes the directives binding on the Catholic hospital are their inclusion in its bylaws—a decision made by its religious sponsor, not the USCCB or even the local bishop. So the USCCB’s promulgation of the directives cannot be considered the proximate cause of any harm suffered by the plaintiff.

In any case, the directives themselves are not to blame for the harm suffered by the plaintiff. The facts as alleged suggest a combination of garden-variety medical malpractice and misinterpretation of the directives. Not informing the patient about her treatment options is clearly negligence—but it is not uniquely Catholic negligence, even if it occurs in a Catholic hospital. Nothing in the directives prevents a Catholic hospital from being fully honest with a patient about her situation and its prognosis. Directives 47 and 49 do allow a hospital to induce labor in situations like the plaintiff’s under the principle of double-effect. In such a case, the death of the unborn child, who would not have survived anyway, is not intended; it is foreseen and accepted as a side effect of treating the mother’s illness. Therefore, the procedure the plaintiff claims she was not offered would not count as a prohibited “abortion” under church teaching.

But the bishops do face a larger problem. A couple of years ago, Phoenix Bishop Thomas Olmsted excommunicated Margaret Mary McBride, RSM, for authorizing a Catholic hospital to perform a procedure necessary to save the life of a pregnant woman with severe pulmonary hypertension. Focusing mainly on the physical structure of the act, he claimed the procedure was an impermissible direct attack on unborn life. If he had had his way, the woman would have been left to die along with the baby—and the hospital would have, and should have, lost its license.

Fortunately, Catholic moral theology has moved beyond Olmsted’s sort of rank physicalism in analyzing human acts. It is repudiated by John Paul II in Veritatis Splendor and by conservative moralists such as Germain Grisez and Martin Rhonheimer. Nonetheless, taken out of context, a few lines in the directives could support Olmsted’s mistaken view.

Properly understood, Catholic moral teaching requires Catholic hospitals to try to save both mother and unborn child, and if that is not possible, doctors must save the patient that can be saved. In early pregnancy, that’s the mother. The time has come for the bishops conference to revise the directives to make that crystal clear.

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Cathleen,

A great article on a most important moral issue.

The moral principle which ought to govern the intervention in the Phoenix case can be formulated as follows: since two lives are at stake, one will, while doing everything possible to save both, attempt to save one rather than allow two to perish. Another is the distinction that Theresa Lysaught argued, using the ethics of Aquinas, that the procedure (the voluntary human action) in dispute was not direct but indirect abortion. 

The material, physical act does not ipso facto specify the morality of the voluntary human action without consideration of the end/intention and circumstances. John Paul II in VS claims that the moral object is the proximate end of an exterior act, per Aquinas, but this is disputed by many theologians. For example, What specific criteria defines the object-forming intention to this so-called proximate end of the exterior act, when it is not the natural end of the act and not the agent’s ulterior intention-to-end? Frankly, no one has been able to answer this question.

Note that the National Catholic Bioethics Center did get involved in the Phoenix case and agreed with the decision of Bishop Olmsted!  

http://www.ncbcenter.org/NetCommunity/Document.Doc?id=171

Thereas Lysaught rightly refuted this opinion

I repeat your wise counsel:

"Catholic moral teaching requires Catholic hospitals to try to save both mother and unborn child, and if that is not possible, doctors must save the patient that can be saved. In early pregnancy, that’s the mother. The time has come for the bishops conference to revise the directives to make that crystal clear."

 

 

"Properly understood, Catholic moral teaching requires Catholic hospitals to try to save both mother and unborn child, and if that is not possible, doctors must save the patient that can be saved.  In early pregnancy, that's the mother.  The time has come for the bishops conference to revise the directives to make that crystal clear."  I agree with you, and I think this would go a long way toward countering the perception that the Church is anti-woman. This is a gut-level, basic issue, that women see as potentially affecting them or their loved ones; as opposed to, for instance, ordination of women.  However one feels about that issue, (and I'm not making light of it) no woman will ever die because she couldn't be a priest.

After centuries in which the Church was a pioneer in health care, especially for the poor, caring for those who had no one to care for them; I am troubled by what seems to be a prevailing perception that Catholic hospitals are not a safe place for women. The opposite should be true. The Church needs to make every effort to reassure women that they are not going to be thrown under the bus; and to put in place directives to make sure that this isn't happening in any Catholic hospital.

Can't one seriously make a case that HV (with birth control) and the anti-abortionists (with human person from conception) base their positions upon *physcalism* and minimize, if not negate, any human actions?

 

National Catholic Bioethics Center - too often reflects the skewed views of Janet Smith.

With great respect, I cannot agree that directives 45 and 47 would have permitted surgically completing the miscarriage in Ms. Means case.  (And this was precisely the situation that resulted in the death of Savita Halappanavar's death.)  Directive 45 says nothing about indirect abortion:  directive 47 allows actions to cure a "pathological condition" in the pregnant woman, which the bishops have always interpreted to mean "a pathological condition other than the pregnancy itself".  This is confirmed by directive 48, which forbids direct abortion of an extrauterine pregnancy.  (As best I understand it, the bishops will accept removal of a fallopian pregnancy because it's the removal of a diseased organ, but not the removal of an abdominal pregnancy which is threatening to rupture a major blood vessel.)

The huge issue here is the matter of informed consent.  The idea that a direct abortion is forbidden even at the cost of the woman's life is a specifically Catholic teaching:  most pro-life Protestants would disagree and virtually all Jews would disagree.  (You won't find a more pro-life Protestant than C Everett Koop, and in a situation where it was impossible to save both of a pair of conjoined twins, he performed an operation that directly sacrificed one twin in an attempt- sadly unsuccessful- to save the more viable twin.) 

If a Catholic hospital fails to tell  a woman in Ms. Means' situation that her child is not salvagable and her own life at grave risk due to the incomplete miscarriage, that seems to me a grave violation of the patient's rights, especially if she is not Catholic.   (A Catholic patient would be more aware that the hospital might withhold that kind of information.)  On the other hand, a Catholic hospital might realistically fear that giving that information might be construed as material cooperation in an abortion.   Directive 55 is worrisome in this respect:  it says that patients facing death "should also be offered the appropriate medical information that would make it possible to address the morally legitiamte choices available to them".  That sounds as though patients should not be given information that would address choices the Church regards as not legitimate.

For any hospital or physician, Catholic or non-Catholic, to withhold full and complete information about the person's medical condition and its prognosis, as well as withholding the urgent and life-saving information about all viable medical treatment options (regardless if they are in harmony or not with Catholic teachings) is immoral and likely criminal under certain circumstances.

The "choice" of a viable medical treatment is the patients' right, not the hospital's or physican's right regardless if the patient is Catholic or not. The Catholic hospital or Catholic physician can elect not to perform a procedure, but not if the procedure is urgent and medically necessary to save the life of the patient (e.g., the procedure must be performed immediately because there is not enough time to safely transfer the patient to another hospital to save the patient's life). If this is not the policy and practice of Catholic hospitals, then this information must be made cystal clear and unambigous to all patients of Catholic hospitals. In my experience, this is not the case.

To refuse to perform a medical procedure, when one life can be saved, and two lives will be lost with certainty even when every effort is made to save both, is a violation of our God-given practical and common moral sense.

 

 

 

 

A number of unknowns here.  If the suit survives a motion to dismiss, it will be interesting to learn what actually happened rather than jump on doctrinal points.  That goes for both sides.

Mary....I agree. However, it seems the issue at hand in the Means case is whether or not the hospital was negligent. All we have at the moment are the claims of the plantiff.

It would be interesting if hospital executives, attending physican(s) and the hospital's ethical committee chair (if called to testify under oath in a court of law), will say that their decisions and the hospital's medical practices in this case were highly influenced by, or in any way directly or indirectly formulated and understood to be hospital policy, by the USCCB directives and Catholic teaching. If so, this case would involve doctrinal points from a Catholic theological perspective. 

 

 

Pettifigging. Do you seriously mean to say that Catholic hospitals just indiviually decide, without undue influence from those officially and canoically in charge of teaching Catholic doctrine, to operate according to Catholic doctrine?

Cathleen,

Thank you for another great article!

You have been one of my favorite columnists ever since you wrote about Catholics who leave the church as a matter of conscience.  I'm one of them and have no regrets, only a question:

What woul it take for a Bishop to be "excommnicated?"    Perhaps, acting like God himself?Bishop Olmsted is still in a positon of power and honor - and that's a disgrace!

 

To put it simply, there is no legal relationship under US state or federal law between the hospital and the bishops as a group, nor typically is there one between the hospital and the local bishop.  Therefore there are no grounds for suing the bishops under US state or federal law.  The ACLU suit is a publicity stunt.

Interesting, but there is no legal basis under US law for suing the bishops because, by someone's standard, the hospital's conduct was "immoral."

Regarding Bishop Olmstead.   It is noteworthy to point out that in cases similar to the one in which sister was excommunicated,  Olmstead's predecessor, Bishop O'Brien never intervened in the hospital's decisions, before or after the fact, much to the discontent of some of the nasty conservatives who worked at the hospital and violated the patient's privacy by communicating information about the procedure to the bishop. 

Bill,

I think you can make the case that some/many arguments in favor of HV have not moved beyond physicalism, which contributes to the fact that many find them intellectually unpersuasive. I touched on these issues in this article. http://www.pcj.edu/journal/essays/14_2_Murphy.pdf . But I think you can still make a reasonable argument in support of HV by reading Aquinas along the lines of Veritatis Splendor. I tried to sketch this in my “Revisiting Contraception: An Integrated Approach in Light of the Renewal of Thomistic Virtue Ethics,” in Theological Studies 72.4 (December 2011): 812-847.

Of course, I am not saying that such an argument is going to convince everyone (or even "many" given how delicate the question is and how strongly opposed many are), but I do think one can make a serious argument that compares well to alternatives. And I know that more will need to be published on these matters to continue to advance the discussion. God willing, the appropriate journals (and publishing houses) will allow such argumentation to be advanced, which sadly has not often been the case.

Bill

While Professor Kaveny is likely correct that the hospital was negligent, the USCCB is at fault as well.  The USCCB may not be able to legally compel a hospital or doctor to comply with its demands, but it has substantial extra-legal power to impose the ERDs, which repeatedly and forseeably result in harm to women. 

The lack of notice and wide variation as to how the ERDs are applied is precisely the danger.  The few lawsuits in which a woman is willing to sue a particular hospital for malpractice after she is harmed by application (or even misapplication) of the ERDs will do little to solve the larger problem.   The USCCB is the proper defendant here because it promulgates and expects hospitals to adopt its vague ERDs, which do not comport with medical ethics and predictably cause harm to women.

To my good friend Bill Murphy,

I think many arguments in support of HV using a narrow view of virtue ethics and/or metaphysical arguments and symbolism is a reason that many find them also intellectually unpersuasive. Equally important is the fact that certain interpretations of Aquinas in support of Veritatis Spendor 78 and the morality of volutnary human actions lacks a convincing substantiation. For one example, see Joseph A. Selling, "The Recovery of Aquinas's Action Theory: A Reply to William Murphy", Theological Studies Vol. 73. No. 1, March 2012.

I do agree that more scholarship must be published to move the conversation forward on the issue of contraception toward a better understand of truth. 

 

 

while recognizing the importance of the sophisticated ethical arguments-they remind me of the pharises and their difficulty with Jesus who always got to the heart of things-thank you for your dose of reality/sanity...not to mention compassion

blessings, rick brown

Hi Mike,

I know you are among the unconvinced, but appreciate the fact that people like you are looking to see more written on these matters. As to the example you cite, I think you know that this involves another example of not being permitted to publish a reply. But it due time and place, that conversation will continue. 

Advent Greetings and Best wishes

 

 

Hi Bill,

My position is based on a thorough understanding of both sides of the argument. This does not make me an expert, but it also does not mean I don't have legitmate philosophical and theological reasons that justify my perspective. Nevertheless, I continue to be open to new scholarship.

As always I appreciate your comments and know that if you could have your way, more articles representing both sides of the theologican divide would be published. As such, I look forward to reading your reply to the example cited.

In the early part of 2014, I will have some very good news to share with you.

Until then, have a Blessed and Merry Christmas and a Happy New Year.

 

 

In general to the discussion, the church overly complicates the issue. Just practice competent and ethical medicine.

Ms. Dunlap's view is bizarre. Organization A declares its view against abortion. Organization B decides to follow organization A's views (more or less). To hold organization A legally at fault in that scenario is as pure of a First Amendment freedom of speech violation as one could possibly imagine. The USCCB's "extra legal power" is pure speech under the constitution. Legal commenters with integrity will at least admit that the claim is meritless, even if they sympathize with the ACLU's view on abortion. Kudos to Cathy Kaveny at least for doing that. But for the ACLU and their ideological friends, who have claimed to defend the freedom of speech and constitutional rights in general, what an embarrassment. These people would violate the Thirteenth Amendment too if it meant promoting abortion.

 

Brandon

It seems to me you take Ms Dunlap to task for conflating theology (largely morality) with jurisprudence (largely reason) and then express your opinion in words that do that very thing.  Where exactly do you find the omniscience allowing the statement "These people would violate the Thirteenth Amendment too if it meant promoting abortion."?  Is that an argument of law or theology or, perhaps, merely an personal opinion based on your personal perceptions?

If I may I would like to remind you the law finds its most useful expression not in absolutes but rather in the infinite ambiguity we call justice.

From a "purely" legal and medical standpoint the experience of Ms Means was malpractice, plain and simple.  The question is whether those who assume responsiblity for managing that particular hospital can find shelter from that fact in their religious beliefs.  Any reasonable understanding of law or medical practice provides no shelter whatsoever.  From a "purely" legal standpoint that is a constitutional question, thus the ACLU's involvement.

Merry Christmas!

 

Brandon-  This is not simply convergence of independent opinions.   Organization A (the bishops) requires organization B (the Catholic hospitals) to follow Organization A's directives.  In the Phoenix case, bishop Olmsted (who had condemned an abortion that was clearly necessary to save the pregnant woman's life) said  "There cannot be a tie in this debate.  Until this point in time, you have not acknowledged my authority to settle this question."   If Bishop Olmsted is the decider, he should not be immune to being sued. 

Anne Evans- The problem is that it is not a legal relationship; the bishops are not able to do more than excommunicate the doctor for breaking with Catholic teachings. If you believe that the law should determine what a religion is allowed to hold as doctrine  than that clearly and flagrantly violates the principles of free religion and free speech.

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About the Author

Cathleen Kaveny teaches law and theology at Boston College.