In battle over reproductive healthcare, the ACLU hunts for best challenge to Catholic hospitals’ ethical rules
A Michigan hospital didn’t terminate Tamesha Means’ pregnancy despite a potentially lifethreatening complication, according to the American Civil Liberties Union.
The ACLU says a different hospital in Michigan refused to allow Jessica Mann’s tubes to be tied during her scheduled cesarean section, against the advice of her doctor who said a brain tumor could make future pregnancies dangerous.
And in California, the ACLU says a hospital balked at Rachel Miller’s request for a tubal ligation during her scheduled C-section.
In each situation, the ACLU intervened. Some say the cases—which involve Catholic hospitals that refuse to provide certain types of care because of religious policies—are a harbinger, especially as Catholic hospitals merge or partner with secular ones. Those making the challenges are testing a host of legal theories to see which ones might stick.
“It’s kind of uncharted territory,” said Jessie Hill, a constitutional and health law professor at Case Western Reserve University who previously worked for the ACLU. “We don’t have a really clear body of law here.”
Catholic hospitals, meanwhile, say the guidelines, called the Ethical and Religious Directives for Catholic Health Care Services, issued by the U.S. Conference of Catholic Bishops, are applied to each unique patient and situation. Catholic hospitals have a “stellar history of caring for mothers and infants,” said Jeff Tieman, chief of staff at the Catholic Health Association.
The directives prohibit abortion and say, “Procedures that induce sterility are permitted when their direct effect is the cure or alleviation of a present and serious pathology and a simpler treatment is not available.”
“There is nothing in the Ethical and Religious Directives that prevents the provision of quality clinical care for mothers and infants in obstetrical emergencies or other situations,” Tieman said.
The ACLU has alleged that denying such care violates state law on corporate practice of medicine, as well as federal law, and amounts to negligence and/or constitutes sex discrimination.
Legal experts say some of those arguments may carry weight, while others might be a stretch. But if the ACLU succeeds with one of these legal strategies, it may mean future lawsuits. What follows are three legal theories the ACLU is pursuing.