Bishops May Not Be the Crooks This Time

Tamesha Means was only 18 weeks pregnant on the morning of December 1, 2010, when her water broke. In a haze of pain, she called a friend for a ride to the only hospital in her central Michigan county. She had no idea that the hospital, Mercy Health Partners, was part of a Catholic health system. She just knew she needed help.

What happened next, contend the plaintiffs in a new lawsuit filed by the ACLU on Means’s behalf, was not just the fault of a doctor, emergency room staff, or even the hospital. The blame goes right to the top—to the U.S. Catholic bishops. According to the lawsuit, over the course of the next 36 hours, Means was never told that her fetus had little chance of surviving. Nor was she told—as she would have been in a secular hospital—that doctors could induce labor or terminate her pregnancy. Instead, Means was twice sent home with painkillers and told to return only if she was having contractions three to four minutes apart. Unaware of the risks of continuing the pregnancy, she followed their instructions, still believing that she could have a healthy baby. On the night of December 2, as hospital staff prepared to discharge her for a third time, Means began to deliver her baby, which lived for fewer than three hours. She left the hospital with only an infection, but her condition—pre-term rupture of membranes—could have resulted in infertility.

Now, the ACLU is alleging that a series of directives from the U.S. Conference of Catholic Bishops (USCCB), which opposes abortion, were responsible for Means’s suffering. In its Ethical and Religious Directives for Catholic Health Care Services—a document last updated in 2009 that is at the heart of the ACLU’s case—the bishops instruct Catholic hospitals not to provide artificial birth control of any kind, including sterilization, or facilitate surrogate pregnancies. Abortion is also forbidden, with a vague loophole for circumstances when the pregnant woman is suffering from a “proportionately serious pathological condition.”  

With the suit, the ACLU is assailing a favorite liberal bête noire. The USCCB has, of late, come to surpass even the papacy as a bastion of support for regressive policies. Cases like Means’s underscore the USCCB’s anti-woman reputation. “Tamesha Means’s story is not unique,” says Louise Melling, deputy legal director for the ACLU. “It’s not about one hospital. We’re shining a spotlight on a lack of basic care for women that happens all over the country.”

Many doctors who work in Catholic hospitals chafe under these restrictions. In a study published in 2012, 52 percent of OB/GYNs who work in Catholic hospitals reported at least one ethical conflict over their employer’s religious policies. Lori Freedman, a medical sociologist at the University of California-San Francisco and one of the study’s authors, explains that in many cases, the directives hang over doctors’ heads. “There are areas where the bishops are less interested in micro-managing the hospital,” she says. “But in other places, the bishops are really involved, and doctors are scared to death.”

Concerns about Catholic hospitals’ constraints on reproductive health care are mounting thanks to the growing number of mergers between Catholic and secular health systems, a change spurred by incentives in the Affordable Care Act. In rural areas, this can mean—as in the case of Mercy Health Partners—that a Catholic hospital is the only gig in town. Currently, one in six Americans are treated in a Catholic facility; one-third of Catholic hospitals are in a rural area. If all of the mergers under consideration go through, this number could rise considerably. Coupled with anti-abortion policies adopted by a growing number of states that require abortion providers to have admitting privileges at a nearby hospital, the expansion of Catholic health systems could severely limit the number of doctors who can offer the procedure.

The Means case disturbingly echoes an incident in 2010, when a Catholic hospital administrator in Phoenix—a nun—was excommunicated after approving an abortion to save the life of a woman with heart failure. The nun was eventually returned to good standing in the church, but after the hospital refused to promise never to perform another abortion, the local bishop, Thomas Olsted, revoked its Catholic affiliation.

As chilling as these cases are, it’s unclear whether the USCCB’s directives—rather than the decisions of individual Catholic hospitals, doctors, or bishops—are to blame. The ACLU’s complaint alleges that the Ethical and Religious Directives “require hospitals to abide by their terms, even when doing so places a woman’s health or life at risk.” John Berkman, a professor of moral theology at the University of Toronto, says that although the directives provide important direction for Catholic health-care providers, they’re  guidelines, not religious laws. “It’s not like the USCCB is the general of the army and the hospitals are their subordinates,” he says. “Anyone who thinks that the bishops say a word and everyone follows in lock step is naïve.”

From a legal perspective, suing the USCCB rather than the doctor or the hospital is akin to blaming a professional organization for medical malpractice, says Robin Fretwell Wilson, a professor of law at the University of Illinois. Much of the ACLU’s case hinges on the lack of information imparted to Means, which is generally considered to be the doctor’s responsibility. “I don’t doubt that if [Means] sued the hospital or the doctor, this would be plain-vanilla medical malpractice,” she says. “But they’re not suing the doctor, the hospital, the local bishops, the board of trustees—you’re many layers removed from the person who really should owe this woman a remedy if everything in the complaint is taken as accurate.”

The very notion that hospitals can decide what kind of care they will provide based on their religious affiliation is ensconced in federal law; shortly after Roe v. Wade was handed down, Congress passed a broadly worded “conscience clause” prohibiting public officials from requiring doctors or institutions who receive government funds to perform abortion or sterilization procedures if they object on moral grounds. Since then, virtually all of the states have enacted some kind of conscience clause legislation—Michigan allows both individual providers and institutions to refuse to provide abortion—and the federal government’s protections on the religious right of refusal have only expanded.

Although federal and state law imparts wide discretion to religiously affiliated health care providers, Catholics are not of one mind about when an abortion is justified; there’s considerable debate among ethicists about how far the right of refusal should go. Julie Hanlon Rubio, a professor of Christian ethics at St. Louis University, a Jesuit institution, says that many moral theologians were disturbed by Olmsted’s condemnation of the Arizona hospital’s decision, which the Catholic Health Association—an umbrella organization comprising more than 600 hospitals—concluded was an appropriate application of the USCCB’s directives. But she adds that she and her colleagues were startled, in part because his action was so extreme. “In cases where both lives are threatened, there’s no way to save both, and the operation that will save the mother will result in the baby’s death, that seems morally justified,” she says. “In some cases, a bishop might overstep boundaries. But it’s not typical to have that kind of intervention.”

Regardless of the suit’s efficacy as a legal strategy, Means’s story doesn’t reflect well on the Catholic bishops and the growing Catholic health system. “It’s hard for people to grasp how abortion is related to miscarriage or emergency obstetric care, but having real cases brings it home,” Freedman says.

But the heart of the ACLU’s complaint seems to be less about the directives themselves than the government’s broad protections for conscientious refusal, which provides the legal justification for the guidelines in the first place. It’s hard to argue that the USCCB shouldn’t tell Catholic hospitals to follow Catholic teachings when U.S. law allows so much leeway for individual health care providers’ religious beliefs, and explicitly counts institutions among those individuals. If Means’s treatment at Mercy Health Partners was substandard, it’s trickier to pin the blame on the directives than on bad interpretations from the hospital or the provider—or simple medical malpractice.

Efforts to paint broad-strokes portraits of Catholics as uniformly hostile to women’s rights don’t sit well with Rubio. But she understands why organizations like the ACLU would be anxious about the potential for the doctors or staff of a Catholic hospital to misunderstand the directives—or for bishops to use them too aggressively.  “Obviously there have to be limits to religious liberty. We can’t allow faith to be a trump card for law,” she says. “But if people think Catholics are insensitive to this issue, that’s not the case. Nobody wants women to die.”

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