At first glance, the recently filed ACLU lawsuit against the United State Conference of Catholic Bishops (USCCB) looks more like a publicity stunt than a legitimate lawsuit. The suit was filed in a federal district court in Michigan and arises out of the alleged negligent management of a miscarriage suffered by the plaintiff when she was 18 weeks pregnant. The complaint alleges that the plaintiff came to the emergency room of Mercy Health Partners (MHP), a Catholic hospital and the only hospital within 30 miles of her home, on three occasions after her water broke and she experienced bleeding and painful contractions. It is claimed that instead of being admitted to the hospital, the plaintiff was sent home from the hospital despite the fact that her treating physician suspected she had chorioamnionitis, a serious bacterial infection. It is also alleged that she was not informed that it was unlikely her baby would survive and that abortion was an appropriate treatment option.
All of this sounds like it could be the basis for a traditional malpractice action against the treating physician and the hospital. But the hospital and the physician aren’t named as parties in this action. Instead the only defendants are the USCCB, and current and former officials of Catholic Health Ministries (CHM), a public juridic person organized under Canon law that sponsors Trinity Health, the owner of MHP. Thus instead of a conventional malpractice action, this lawsuit is a broadside attack on religious liberty.
The ACLU has long been disturbed by the failure of Catholic hospitals to provide abortions. And it has been particularly concerned about communities where the only readily available hospital is under Catholic sponsorship. The ACLU has argued that Catholic hospitals, as community hospitals that receive some public funding, should provide a full range of “reproductive services” including abortion. This lawsuit by the ACLU should be viewed as part of a larger effort to mainstream abortion and promote it as a routine medical procedure without moral significance. If Catholic hospitals are forced to provide abortions, and Catholic bishops are intimidated into silence on the issue, then this would constitute a major victory for abortion advocates.
And so instead of focusing on potential malpractice, the complaint alleges that MHP failed to inform the plaintiff of the option of terminating her pregnancy because it was a Catholic hospital that adhered to the Ethical and Religious Directives. The complaint also alleges a pattern and practice, i.e., in several other cases MHP has failed to induce labor or terminate the pregnancy when the patient miscarried before the fetus was viable. The complaint then goes into some detail on the negligence of the USCCB in adopting the Ethical and Religious Directives for Catholic Health Care Services (Fifth Ed. 2009)(ERDs). It cites specifically Directive 5, which requires Catholic Health Care Services to adopt and adhere to the ERDs, and Directive 45, which prohibits direct abortions. Up to this point, the complaint is largely accurate: The ERDs do clearly require that the lives of the baby and the mother be given equal weight and medically appropriate measures be used to protect and preserve both their lives. But while it is correct to assume that under the ERDs, personnel at a Catholic hospital should not be involved in a direct abortion of a pre-viable living fetus, the ERDs certainly do not preclude aggressive antibiotic treatment for chorioamnionitis, the standard treatment. Nor do the ERDs preclude terminating a pregnancy or providing a D&C where the fetus is already dead.
Generally, Catholic hospitals and individual health-care providers are protected under federal and state conscience-clause legislation from being compelled to perform abortions. The ACLU has consistently argued that existing laws give Catholic institutions too much protection. So this lawsuit is seeking to make an end run around existing conscience-clause legislation by holding religious groups directly responsible for teaching that abortion is immoral. The essence of the lawsuit against the USCCB is the claim that in adopting the ERDs it negligently increased the risk of harm to patients at Catholic health-care facilities and precluded compliance with federal laws such as EMTALA. The complaint alleges that MHP is owned by Trinity Health, a civil corporation that is sponsored by CHM, an entity with certain reserved powers under Trinity’s Articles of Incorporation (AIs) that include powers relating to the preservation of its Catholic mission. It is also alleged that under its AIs, Trinity is required to apply Catholic moral values and principles (including the ERDs) in its hospitals. But since the USCCB has no authority under civil law to force hospitals to adopt or follow the ERDs, the basis for holding the USCCB legally accountable for this alleged negligence in exercising its First Amendment rights is not clear from the complaint.
In fact, the ERDs aren’t even effective under Canon law until they have been promulgated by the local bishop. In the United States all bishops have adopted the ERDs, but it is up to the local bishop to adopt and enforce them. The authority of the local bishop should be viewed as proposing rather than imposing the ERDs. Even the local bishop has no authority under civil law to compel a hospital to follow the directives. All the bishop can do by way of sanction is to issue a statement that the hospital should no longer be considered Catholic because it has allowed direct abortions, or that individual Catholics involved in providing abortion are subject to automatic excommunication. It is up to the governing board of the civil corporation that owns the hospital to decide whether or not to comply with the local Bishop’s attempt to enforce the directives. On these facts, it is difficult to envision a court holding the USCCB liable for some alleged malpractice by a Catholic hospital. If the USCCB is liable, then perhaps Pope Francis might also be subject to liability for recently reminding us in the Apostolic Exhortation Evangelii Gaudium that:
Among the vulnerable for whom the Church wishes to care with particular love and concern are unborn children, the most defenceless and innocent among us. Nowadays efforts are made to deny them their human dignity and to do with them whatever one pleases, taking their lives and passing laws preventing anyone from standing in the way of this. Frequently, as a way of ridiculing the Church’s effort to defend their lives, attempts are made to present her position as ideological, obscurantist and conservative. Yet this defence of unborn life is closely linked to the defence of each and every other human right. It involves the conviction that a human being is always sacred and inviolable, in any situation and at every stage of development. Human beings are ends in themselves and never a means of resolving other problems. Once this conviction disappears, so do solid and lasting foundations for the defence of human rights, which would always be subject to the passing whims of the powers that be. Reason alone is sufficient to recognize the inviolable value of each single human life, but if we also look at the issue from the standpoint of faith, “every violation of the personal dignity of the human being cries out in vengeance to God and is an offence against the creator of the individual.”
— Leonard J. Nelson, III, is a retired professor of law and the author of Diagnosis Critical: The Urgent Threats Confronting Catholic Health Care (OSV 2009).