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Why Won’t the ACLU Respect the Civil Liberties of Catholic Hospitals?


Phalinn Ooi CC

John Burger - published on 10/14/15

The "rights" group is trying to force hospitals to go against their own ethical and religious directives

Another month, another ACLU lawsuit against a Catholic hospital.

The American Civil Liberties Union has already attempted several times to get Catholic hospitals or health care systems to allow tubal ligations, a practice at odds with Catholic moral doctrine.

Now the organization is fighting to force a Catholic hospital system to allow abortions in its facilities.

As in the other cases, the ACLU is gunning for a provision of the Ethical and Religious Directives for Catholic Health Care Services, promulgated by the United States Conference of Catholic Bishops to guide Catholic hospitals along ethical lines. The ERDs, as they are known among Catholic health care practitioners and medical ethicists, formally forbid practices such as abortion, sterilization, contraception, assisted suicide and euthanasia in Catholic facilities. The ACLU claims that the directives prevent women from getting good reproductive health care and that in some circumstances, particularly when the Catholic hospital is the only practical choice for a woman because of distance, put women in serious life-and-death situations.

In the latest suit, which is brought against Trinity Health Corp. of Indiana, the ACLU charges that the ERDs conflict with the federal Emergency Medical Treatment and Active Labor Act (EMTALA), which requires emergency departments to “stabilize any individual determined to have a medical emergency.”

Trinity Health owns and operates 86 hospitals in the United States. The ACLU charges that several pregnant patients at Trinity facilities who were miscarrying because of preterm premature rupture of membranes, a condition in which the amniotic sac breaks and leaves no fluid around the fetus were denied “stabilizing care.” For the ACLU, in cases like this, that means termination of pregnancy.

“The denial of such treatment resulted in these women becoming septic, hemorrhaging, contracting life-threatening infections, and/or unnecessarily suffering severe pain for several days,” says the ACLU’s legal brief, filed Oct. 1 in the US District Court for the Eastern District of Michigan, Southern Division.

Trinity said the case has no merit.

“A federal court already dismissed a similar ACLU claim, and we will seek dismissal of this suit for the same reason,” said spokeswoman Eve Pidgeon. “The Ethical and Religious Directives are entirely consistent with high-quality health care, and our clinicians continue to provide superb care throughout the communities we serve.”

John Brehany, an ethicist at the National Catholic Bioethics Center, said in an interview that the ACLU focuses on one of the ERDs—Directive 45—which forbids the practice of abortion in Catholic facilities.

But read on, Brehany counsels Catholic health care’s detractors. Directive 47 states:

Operations, treatments, and medications that have as their direct purpose the cure of a proportionately serious pathological condition of a pregnant woman are permitted when they cannot be safely postponed until the unborn child is viable, even if they will result in the death of the unborn child.

And Directive 49 says that for a “proportionate reason, labor may be induced after the fetus is viable.”

“We ethicists at the NCBC would say that all three are important to provide ethical guidance to hospitals or doctors, and pretty much, I think, we’d argue, provide the ethical framework to responding to real complications and emergencies in which it is necessary to treat the mother but not to intend or take actions that have as their direct effect merely the destruction of the unborn child.”

Brehany said the ACLU ignores Directive 47 and the fact that there are situations in which Catholic ethical principles would allow a doctor to treat a woman, even though the treatment would result in the death of the unborn child.

“I think it paints an unfair picture,” he said.

In fact, it’s not just in its lawsuits that that picture is painted. ACLU’s website has a whole section having to do with the danger of Catholic hospitals. A post announcing the latest lawsuit says:

When you’re pregnant, what can go wrong is often the last thing you want to think about.  Unfortunately, the unimaginable sometimes happens: you’re in the middle of your pregnancy when all of a sudden your amniotic fluid starts to leak.  You’re in extreme pain.  You start to bleed.  You start to get a fever.  You rush to the nearest hospital.  You’d expect that any hospital emergency room would provide you the proper care.  Right?  Unfortunately, that’s not the case if you end up at a Catholic hospital.

The post is illustrated with an cartoon image of a hospital emergency room, with its doors blocked by a silhouette of a fully vested bishop, complete with towering miter.

Catholic Health Association CEO Sister Carol Keehan told Modern Healthcare that it is “irresponsible” for the ACLU to assert Catholic hospitals’ maternity service is unsafe for women and “disrespectful” to physicians who are ensuring patients remain safe:

Keehan said in the aftermath of emergency pregnancy complications, parents want to be sure all was done to protect their child. “This is not a simple clinical situation that you ‘take care of’ and then move on,” Keehan said. “Anyone who has ever cared for these parents knows that this will always be the child they lost.”

So how do Catholic hospitals normally deal with conditions such as premature rupture of membranes? Brehany said it depends on things like when in the pregnancy it happens or the amount of rupture and whether it can be surgically corrected. Often it can be handled with a combination of things, including bed rest and minimizing the effects of the rupture.

What is critical is watching for infection and treating right away.

“They can do everything they can to manage that rupture expectantly, to see what they can do to hopefully get a woman through it,” he said. “Every week along you get, the better the chance is of survival of the baby.”

With a condition such as preeclampsia, in which a pregnant woman has high blood pressure, however, there are “some pretty touch-and-go circumstances where it’s not possible to wait and they have to try to fairly ensure that what they are doing is treating the disease of the woman and not killing the unborn child for the sake of the woman,” Brehany said.

Responding to a similar ACLU lawsuit against a Catholic hospital this summer, Dr. Peter T. Morrow, president of the Catholic Medical Association, said that it appears that there is a “well-orchestrated effort to deny the constitutional rights of Catholic health care institutions,” and that legal conscience protection must be strengthened.

“Medical professionals who uphold the principles of the Hippocratic Oath are now being specifically targeted,” Morrow said in a statement to Aleteia. “They are faced with either violating their fundamental religious beliefs or being forced out of the medical profession. Failure to provide conscience protection will ultimately lead to trusted healthcare providers and institutions being driven out of medical practice.  This will only exacerbate the shortages that already exist in access to health care. The Association of American Medical Colleges has estimated a severe physician shortage, between 46,000-90,000, over the next ten years. Without robust conscience protection, patients risk losing the hospitals, physicians, nurses and allied medical professionals they have entrusted their lives and health to for years.”

Brehany said too little is known about the cases in question at Trinity Health. “If the ACLU wants to complain about ‘several women suffering from premature rupture of membrane were denied appropriate care,’ I don’t know what that means,” he said. “What was their condition? Could they be managed expectantly through that? Was that the judgment of the physician? Maybe it was. Was that sound judgment? Maybe it was, maybe it wasn’t.

“If they don’t think it was and they can prove some harm, they ought to sue on the merits for malpractice or something,” he concluded. “That doesn’t seem to be what they’re doing here.”

John Burgeris news editor for Aleteia’s English edition.

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