Legal experts say alleging negligence might also prove a strong argument.
“That’s the more promising route when you have an actual instance of denial of care or plaintiff who’s been damaged,” Hill said. “Courts are more comfortable making these decisions based on concrete facts.”
That argument, however, has already failed the ACLU at least once.
The ACLU sued the U.S. Conference of Catholic Bishops over the care of Tamesha Means at Trinity’s Mercy Health Muskegon (Mich.). The suit alleged she sought emergency care when she was pregnant and experiencing contractions. It turned out she had a bacterial infection, but Means was never told that early termination was an option or that continuing with the pregnancy could harm or even kill her, according to the lawsuit. She gave birth at 18 weeks and the baby died.
Means alleged negligence, but a U.S. District Court judge said in June he could not determine whether the establishment of the directives itself constituted negligence because it would involve an inquiry into church doctrine.
The ACLU filed an appeal with the 6th U.S. Circuit Court of Appeals in July.