U.S. Bishops’ Health Care Directives on Trial
ACLU Claims Called ‘Baseless’
BY Joan Frawley Desmond
Dec. 29, 2013-Jan. 11, 2014 Issue | Posted 12/20/13 at 1:49 PM
WASHINGTON — The American Civil Liberties Union (ACLU) has filed a lawsuit in federal court that holds the U.S. bishops, through their health-care guidelines, accountable for alleged negligent treatment of a pregnant woman at a Michigan Catholic hospital.
The lawsuit, Tamesha Means v. the U.S. Conference of Catholic Bishops, claims that the plaintiff, who had begun to miscarry during her 18th week of pregnancy, was sent home twice and denied appropriate medical information and treatment because the U.S. bishops’ "Ethical and Religious Directives for Catholic Health Care Services" (ERDs) prevent Catholic hospital staff from providing abortion services or referrals, "even when doing so places a woman’s health or life at risk."
Archbishop Joseph Kurtz of Louisville, Ky., president of the U.S. Conference of Catholic Bishops (USCCB), dismissed the ACLU’s claim as "baseless," and the Catholic Health Association (CHA), an industry lobby, defended the record of its members, which comprise about 15% of U.S. hospitals.
A top adviser to the U.S. bishops on bioethics has asserted that the ERDs do not bar medical treatment that might have the unintended effect of ending a pregnancy.
Legal experts noted the striking decision to frame the allegations of medical negligence as a byproduct of the ERDs, rather than as a straightforward case of medical malpractice. And the lawsuit marks an era of aggressive challenges to the free exercise of Church-affiliated institutions that abide by Catholic moral teaching on abortion, contraception and marriage.
In a Dec. 6 statement, Archbishop Kurtz described the allegations contained in the lawsuit as "misguided," while noting that the USCCB could not "speak to the facts of the specific situation described in the complaint, which can be addressed only by those directly involved."
Still, he vowed that the bishops’ conference would continue to defend its own right and that of Catholic hospitals to affirm moral teaching that prohibits direct abortion.
"The Church’s rejection of abortion also mirrors the Hippocratic Oath that gave rise to the very idea of medicine as a profession, a calling with its own life-affirming moral code," said Archbishop Kurtz.
"This lawsuit argues that it is legally ‘negligent’ for the Catholic bishops to proclaim this core teaching of our faith. Thus, the suit urges the government to punish that proclamation with civil liability, a clear violation of the First Amendment."
The ACLU’s Case
However, the ACLU insists that the lawsuit does not constitute a threat to the free exercise of Catholic hospitals. In a Dec. 2 press call, Louise Melling, the organization’s deputy legal director, told reporters, "This isn’t about religious freedom; it’s about medical care."
According to papers filed in a federal court in Michigan, the plaintiff "brings this negligence action against the United States Conference for Catholic Bishops and others for promulgating and implementing directives that cause pregnant women who are suffering from a miscarriage to be denied appropriate medical care, including information about their condition and treatment options."
"Because of the directives, MHP [Mercy Health Partners] did not inform Ms. [Tamesha] Means that, due to her condition, the fetus she was carrying had virtually no chance of surviving and continuing her pregnancy would pose a serious risk to her health. Nor did MHP tell Ms. Means that the safest treatment option was to induce labor and terminate the pregnancy. MHP also did not tell Ms. Means that it would not terminate her pregnancy, even if necessary for her health, because it was prohibited from doing so by the directives."
Accordingly, the plaintiff alleges that "the directives require Catholic hospitals to abide by their terms, even when doing so places a woman’s health or life at risk."
The lawsuit states that the plaintiff visited the Catholic hospital three times in December 2010, after her water broke. On the third visit, after she had developed an infection, but was still about to be sent home, "the feet of the fetus breached her cervix, and she began to deliver."
The lawsuit claims that, as "a direct result of these religious directives, Ms. Means suffered severe, unnecessary and foreseeable physical and emotional pain and suffering. She seeks both damages and a declaration that defendants’ actions were negligent, not only to provide a remedy for the trauma she suffered, but also to prevent other women in her situation from suffering similar harm in the future."
Catholic Hospitals Respond
The ACLU’s Dec. 2 announcement sparked headlines repeating the claim that "Catholic hospitals put women at risk" and that the U.S. bishops’ directives "led to negligent care."
On Dec. 8, The New York Times posted an editorial, "When Bishops Direct Medical Care," which argued that the implementation of the ERDs in Catholic hospitals essentially "violates medical ethics and existing law."
Further, theTimes suggested that the danger posed by the directives was magnified by the fact that "Catholic hospitals account for about 15% of the nation’s hospital beds and, in many communities, are the only hospital facilities available."
The Catholic Health Association quickly responded to the Times’ editorial, posting a statement on its website that disputed the characterization of Catholic hospitals as unsafe for pregnant women.
"In many communities in our country, the Catholic hospital’s maternity service is the designated center for high-risk pregnancies. It is inaccurate and irresponsible to assert that these wonderful community services are unsafe for mothers in an obstetrical emergency simply because [they are at] a Catholic hospital," read the statement.
"The inaccuracy of this assertion is easily proven," the statement added, noting the role of independent industry groups and state-based agencies that "would not accredit or license a hospital that is unsafe for mothers or infants under any circumstance."
John Haas, the president of the National Catholic Bioethics Center, a group that advises the U.S. bishops on a variety of moral issues, told the Register that he had not reviewed the medical case addressed in the lawsuit, but he described the ACLU’s broad attack on the medical treatment available to pregnant women in Catholic hospitals as "a fundamental misunderstanding — if not a misrepresentation — of the ‘Ethical and Religious Directives.’"
Haas also asserted that the guidelines were more nuanced than media reports suggested and that they provided leeway to address medical emergencies experienced by pregnant women.
Several directives in the ERDs address medical problems related to the lawsuit, he said.
Directive 27 deals with "informed consent" and requires physicians to provide "all reasonable information about the essential nature of the proposed treatment ... its risks, side-effects, consequences and cost ... including no treatment at all."
Meanwhile, "Directive 47 provides for medical intervention to address a serious and present pathological condition in the woman that cannot be postponed."
Thus, in specific cases, according to the directives, medical treatment can be provided even if it "results in the foreseen but unintended death of the unborn child."
Haas also noted the possibility that hospital staff improperly implemented the U.S. bishops’ directives, and he emphasized the importance of proper training of all health-care professionals at Catholic hospitals.
Mixed Legal Opinions
Legal experts contacted by the Register offered differing assessments of the merits of the ACLU’s lawsuit.
"The lawsuit is meritless; I will be very surprised if it survives the initial motion to dismiss it," Gerard Bradley, a constitutional scholar at the University of Notre Dame Law School, told the Register.
"One can see readily that the whole point of it is not to redress any actual injury of the patient-plaintiff, because the ACLU has not sued the hospital where the alleged malpractice occurred."
Noting the bishops’ ongoing legal challenge to the Health and Human Services’ mandate and other religious-freedom battles, Bradley asserted that the lawsuit represented "a political shot across the bow of the bishops’ conference and an attempt to stir up public opinion against the Catholic Church (once more) by arraigning the Church as being ‘at war with women.’"
However, Douglas Laycock, an expert on religious-freedom issues at the University of Virginia’s law school, took a different view of the lawsuit.
"You have to take the complaint seriously," Laycock told the Register.
"If the local hospital actually violated the ERDs, then the claim that the bishops or Catholic health ministries made them do it isn’t true and can’t be proved," he noted.
With that caveat, he predicted, "the ERDs will be on trial." And the court will address whether "religious liberty justifies the hospital’s course of action here."
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