A Fatal Conflict
John F. Tuohey January 11, 2011 - 2:45pm
It is commonly accepted that any entity that is part of the Catholic health-care ministry must offer its services in a manner consistent with the Ethical and Religious Directives for Catholic Health Care Services [PDF] (ERDs), a publication of the United States Conference of Catholic Bishops (USCCB). The ERDs help distinguish Catholic health care from other systems, in part by proscribing certain services—including sterilization and abortion—that the tradition judges morally wrong.
The notion that Catholic identity entails the refusal to provide services can be challenging for the ministry, as many of these services are desired by the communities served and in some instances deemed medically necessary by providers. Justification for this refusal is rooted in the Catholic tradition’s conception of religious liberty, which stipulates that all individuals and groups enjoy an inherent freedom to live in society in a way faithful to their beliefs—whether they are raising a family, attending services, or providing a public good such as health care.
An event that came to public light last spring raises the question of this relationship between religious liberty and Catholic identity in health care. In November 2009, a twenty-seven-year-old woman, eleven weeks pregnant, was admitted to a Catholic hospital in Phoenix, Arizona, where she was diagnosed with pulmonary hypertension, high blood pressure in the arteries that supply the lungs. This condition, which is greatly exacerbated by pregnancy, impairs heart-lung function and can lead, as in this case, to cardiogenic shock, a condition in which heart cells begin to die from lack of oxygen. Without treatment, cardiac arrest can result. The staff at the Phoenix hospital assessed the woman’s condition as dire, believing she would die unless her conditions were treated. And the treatment physicians recommended was the termination of her pregnancy.
Cases like this pose a unique situation that has been termed a vital maternal-fetal conflict. Such a conflict involves a medical crisis in which (1) no procedure can save both mother and child, (2) no procedure can save the child, (3) only one procedure can save the mother, and (4) that procedure entails ending the pregnancy. In the Phoenix case, a D&C (dilation and curettage) was recommended to end the pregnancy and save the woman’s life. The hospital’s ethics committee gave its approval, and the D&C was performed.
The local bishop, learning of the event six months later, publicly condemned the procedure as violation of the ERDs, and just last month he officially decreed that the hospital cannot be considered Catholic. “An unborn child is not a disease,” Bishop Thomas J. Olmsted said in a statement to the Arizona Republic last April. “While medical professionals should certainly try to save a pregnant mother’s life, the means by which they do it can never be by directly killing her unborn child. The end does not justify the means.” In an added remark seemingly aimed at Sr. Margaret McBride, an administrator at the hospital who sat on the ethics committee that signed off on the abortion, Bishop Olmsted asserted that any Catholic who “formally cooperates” in an abortion is “automatically excommunicated.”
The remark triggered a minor media frenzy, and in June 2010, asserting that media reports had “caused some confusion among the faithful as to what the church teaches,” the USCCB’s Committee on Doctrine published a statement about the case [PDF]. Referring to its “mandate to provide expertise and guidance,” the committee attempted to clarify church teaching, differentiating between those situations in which it may be permissible to perform a medical procedure that ends a pregnancy (an indirect abortion), and those in which it is never permissible (a direct abortion). Though it made no explicit judgment about the situation in Phoenix, the statement used a hypothetical vital maternal-fetal conflict—“a pregnant woman experiencing problems with one or more of her organs apparently as a result of the added burden of pregnancy”—to illustrate a direct abortion. Ending such a pregnancy is impermissible, the committee stated, since “the surgery does not directly address the health problem of the woman...by repairing the organ that is malfunctioning,” but rather “directly targets the life of the unborn child.” The means by which “the burden posed by the pregnancy will be removed” is “the surgical instrument in the hands of the doctor that causes the child’s death.”
The committee offered a second scenario as an example of a permissible abortion—a hysterectomy performed on a woman, diagnosed with uterine cancer, who tragically happens to be pregnant. In this example, no health conflict exists between mother and child. Instead, the mother’s health crisis is related to a pathology that exists independently of the pregnancy. “In this case the surgery directly addresses the health problem of the woman, that is, the organ that is malfunctioning (the cancerous uterus). The woman’s health benefits directly from the surgery, because of the removal of the cancerous organ. The surgery does not directly target the life of the unborn child.” Thus, it may be allowed.
The committee ended its clarification by quoting Pope John Paul II’s statement (in Evangelium vitae) that no reason, “however serious and tragic,” can justify “the deliberate killing of an innocent human being,” and that “no circumstance, no purpose, no law whatsoever can make licit an act which is intrinsically illicit.” In this vein, the bishops could just as accurately have summed up their statement by citing the Congregation for the Doctrine of the Faith’s 1974 Declaration on Procured Abortion, which asserted that not even “a serious question of health, sometimes of life or death, for the mother… can ever objectively confer the right to dispose of another’s life.” All in all, the message seems clear: In cases of vital maternal-fetal conflict like the one in the Catholic hospital in Phoenix there is no morally permissible way to prevent the death of the mother.
While the bishops’ statement may provide clarification of church teaching on abortion, it raises a myriad of complications for the church’s health-care ministry. The case of a patient in crisis who comes to an emergency room and is refused treatment on moral grounds would seem to violate the federal Emergency Medical Treatment and Labor Act (EMTALA), which requires that a patient in an emergency must be treated or—if the condition cannot be medically managed—safely transferred to another hospital. Such a violation raises a variety of accreditation, licensing, and liability issues for Catholic hospitals and the providers. For the patient, of course, it raises the prospect of dying from being in the wrong place—a Catholic hospital—at the wrong time.
Must a hospital refuse a lifesaving intervention in this case? ERD #5 states that all the directives of the ERDs—which would include #45, prohibiting direct abortions—must be adopted as policy, and that each Catholic facility must “require adherence to them as a condition for medical privileges and employment.” Further, the ERDs affirm that when the Catholic health-care ministry refuses to provide a prohibited service, it “does not offend the rights of individual conscience.” Yet it is beyond debate that the refusal of a prohibited service in cases of vital maternal-fetal conflict offends at minimum the right to life of a patient whose death could otherwise be prevented. Does Catholic teaching recognize no limits to the exercise of religious beliefs in the public arena—not even when it is a matter of a patient’s life or death?
The question goes to the Catholic tradition’s understanding of religious liberty. This liberty is perhaps best described in the Vatican II decree Dignitatis humanae (DH), which Pope Paul VI deemed “one of the major texts of the council.” In DH, the council noted a growing awareness in the world of human dignity, a reality “impressing itself more and more on the consciousness of contemporary man.” A central aspect of human dignity is the demand for “the free exercise of religion in society”—the freedom to believe, to worship, and to live according to one’s moral precepts. “This Vatican Council declares,” DH announced, “that the human person has a right to religious freedom.”
Drawing on this notion of religious freedom, the Catholic health-care ministry and the U.S. bishops have sought legislated protections, such as conscience clauses, to ensure the freedom to practice health care in a manner consistent with the church’s moral teachings. The purpose of these protections is to allow Catholic health care, and indeed any religiously based health-care entity, to refuse to provide services it judges morally wrong. A 2009 University of Notre Dame conference on the topic of conscience clauses proposed that a “good” conscience clause would stipulate that no private entity, as a condition for receiving public funds or other benefits, “be compelled to provide, pay for...or refer for abortion if to do so would violate the animating moral norms of the entity.” Such broad protection of Catholic health care’s religious liberty would protect not only the refusal to end a pregnancy in a vital maternal-fetal conflict, but also seemingly the refusal to facilitate the transfer of the patient to another facility, since that might entail “immediate material cooperation” in abortion as prohibited by ERD #70. These protections are seen as essential if the ministry is to be able to retain its Catholic identity as it provides health care to the general public.
Dignitatis humanae is clear that the right to religious freedom is inalienable. It is also clear that the exercise of this right is not inalienable, and can be subject to “certain regulatory norms.” The first of these norms comprises the personal and social responsibility by which individuals or groups impose limits on the exercise of their own religious liberty. “In the exercise of their rights,” the council wrote, “individual men and social groups are bound by the moral law to have respect both for the rights of others and for their own duties toward others and for the common welfare of all.” The second of these regulatory norms is the “special duty of government” to defend society, in certain limited and necessary contexts, “against possible abuses committed on pretext of freedom of religion.” Judicial restraints on the exercise of religious liberty may “arise out of the need for the effective safeguard of the rights of all citizens and for the peaceful settlement of conflicts of rights.”
When a patient arrives in extremis at a Catholic hospital in the rare but very real situation reflected in the Arizona case, there arises a direct and immediate conflict between the patient’s life—a life which will be lost if nothing is done—and Catholic health care’s right to religious liberty in following its own precepts. In an effort to find an “effective safeguard of the rights of all citizens and...the peaceful settlement of conflicts of rights,” might it be possible, in this kind of case, for the ministry to appeal to the church’s teaching regarding self-imposed limitations on its own exercise of religious liberty? Might Catholic identity entail discerning precisely this question, rather than merely insisting that its religious freedoms trump the patient’s right to life-saving treatment?
In light of the profound and dire consequences to the woman in such a case, it seems at the very least that the ministry owes a thoughtful consideration of such a self-limited exercise of its religious freedom. The ministry’s self-interest, moreover, may lie in exploring this solution. Had the patient in Phoenix died, some would surely be arguing right now that the hospital was guilty of precisely one of those abuses committed on the pretext of religious liberty that Dignitatis humanae says governments should seek to prevent. By way of analogy, what would be the public’s tolerance for the exercise of religious liberty by a Jehovah’s Witness hospital refusing to give a transfusion—or facilitate a transfer—for a Catholic patient bleeding to death? Would we view that as the hospital giving faithful witness to its moral precepts? Would we want such witness to be protected by the conscience clause recommended at the Notre Dame conference?
Catholic health care has a long history of offering itself to the public in pursuit of the common good of life, health, and well-being. This public service has created the potential for religious freedom to come into sharp conflict with the physical welfare of certain pregnant women. Such cases are rare, yet ethicists suggest they occur more often than we might think. And so it is imperative for the ministry to inquire whether patients must ever be allowed to die, or whether self-imposed limits on the exercise of religious liberty might be invoked to save the one life that can be saved. If the ministry does not ask this question of itself, an answer may be imposed upon it—the first time a woman dies in a vital maternal-fetal conflict in a Catholic hospital, the government will certainly step in to provide its own brand of safeguards for the peaceful settlement of this conflict. More important, though, it would be tragic to realize only after a patient has died that religious liberty does not justify the absolute exercise of religious freedoms—and that Catholic identity in health care requires not merely following moral precepts to their logical conclusion, but also having the wisdom to discern when not to.
About the Author
Rev. John F. Tuohey holds the Endowed Chair of Applied Health Care Ethics, and is regional director of the Providence Center for Health Care Ethics for Providence Health & Services in Oregon, a part of Providence Health & Services health system based in Renton, Washington.