In bat­tle over re­pro­duc­tive health­care, the ACLU hunts for best chal­lenge to Catholic hos­pi­tals’ eth­i­cal rules

Modern Healthcare - - NEWS - By Lisa Schencker

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.

In Tame­sha Means’ case, the ACLU al­leges she re­ceived neg­li­gent care be­cause of the Catholic di­rec­tives.

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