News Law and Policy

In Malpractice Case, Catholic Hospital Argues Fetuses Aren’t People

John Tomasic

Lawsuit against Catholic Health Initiatives appealed to Colorado Supreme Court.

Cross-posted in partnership with the Colorado Independent.

For further coverage of the treatment of pregnant women in Catholic Hospitals, click here.

Lori Stodghill was 31-years old, seven-months pregnant with twin boys and feeling sick when she arrived at St. Thomas More hospital in Cañon City on New Year’s Day 2006. She was vomiting and short of breath and she passed out as she was being wheeled into an examination room. Medical staff tried to resuscitate her but, as became clear only later, a main artery feeding her lungs was clogged and the clog led to a massive heart attack. Stodghill’s obstetrician, Dr. Pelham Staples, who also happened to be the obstetrician on call for emergencies that night, never answered a page. His patient died at the hospital less than an hour after she arrived and her twins died in her womb.

In the aftermath of the tragedy, Stodghill’s husband Jeremy, a prison guard, filed a wrongful-death lawsuit on behalf of himself and the couple’s then-two-year-old daughter Elizabeth. Staples should have made it to the hospital, his lawyers argued, or at least instructed the frantic emergency room staff to perform a caesarian-section. The procedure likely would not have saved the mother, a testifying expert said, but it may have saved the twins.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

The lead defendant in the case is Catholic Health Initiatives, the Englewood-based nonprofit that runs St. Thomas More Hospital as well as roughly 170 other health facilities in 17 states. Last year, the hospital chain reported national assets of $15 billion. The organization’s mission, according to its promotional literature, is to “nurture the healing ministry of the Church” and to be guided by “fidelity to the Gospel.” Toward those ends, Catholic Health facilities seek to follow the Ethical and Religious Directives of the Catholic Church authored by the U.S. Conference of Catholic Bishops. Those rules have stirred controversy for decades, mainly for forbidding non-natural birth control and abortions. “Catholic health care ministry witnesses to the sanctity of life ‘from the moment of conception until death,’” the directives state. “The Church’s defense of life encompasses the unborn.”

The directives can complicate business deals for Catholic Health, as they can for other Catholic health care providers, partly by spurring political resistance. In 2011, the Kentucky attorney general and governor nixed a plan in which Catholic Health sought to merge with and ultimately gain control of publicly-funded hospitals in Louisville. The officials were reacting to citizen concerns that access to reproductive and end-of-life services would be curtailed. According to The Denver Post, similar fears slowed the Sisters of Charity of Leavenworth’s plan over the last few years to buy out Exempla Lutheran Medical Center and Exempla Good Samaritan Medical Center in the Denver metro area.

But when it came to mounting a defense in the Stodghill case, Catholic Health’s lawyers effectively turned the Church directives on their head. Catholic organizations have for decades fought to change federal and state laws that fail to protect “unborn persons,” and Catholic Health’s lawyers in this case had the chance to set precedent bolstering anti-abortion legal arguments. Instead, they are arguing state law protects doctors from liability concerning unborn fetuses on grounds that those fetuses are not persons with legal rights.

As Jason Langley, an attorney with Denver-based Kennedy Childs, argued in one of the briefs he filed for the defense, the court “should not overturn the long-standing rule in Colorado that the term ‘person,’ as is used in the Wrongful Death Act, encompasses only individuals born alive. Colorado state courts define ‘person’ under the Act to include only those born alive. Therefore Plaintiffs cannot maintain wrongful death claims based on two unborn fetuses.”

The Catholic Health attorneys have so far won decisions from Fremont County District Court Judge David M. Thorson and now-retired Colorado Court of Appeals Judge Arthur Roy.

In September, the Stodghills’ Aspen-based attorney Beth Krulewitch working with Denver-based attorney Dan Gerash appealed the case to the state Supreme Court. In their petition they argued that Judges Thorson and Roy overlooked key facts and set bad legal precedent that would open loopholes in Colorado’s malpractice law, relieving doctors of responsibility to patients whose viable fetuses are at risk.

Whether the high court decides to take the case, kick it back down to the appellate court for a second review or accept the decisions as they stand, the details of the arguments the lawyers involved have already mounted will likely renew debate about Church health care directives and trigger sharp reaction from activists on both sides of the debate looking to underline the apparent hypocrisy of Catholic Health’s defense.

At press time, Catholic Health did not return messages seeking comment. The Stodghills’ attorneys declined to comment while the case was still being considered for appeal.

The Supreme Court is set to decide whether to take the case in the next few weeks.

Analysis Human Rights

ICE Releases Reports for 18 Migrants Who Died in Detention, Medical Neglect Is Suspected

Tina Vasquez

Though the death reviews released by ICE provide further insight into the conditions inside detention centers, the bigger concern among researchers and advocates is what they don't know.

A new report from Human Rights Watch (HRW) documents the deaths of 18 migrants in Immigration and Customs Enforcement custody from mid-2012 to mid-2015. In some cases, the deaths were likely preventable and the result of “substandard medical care and violations of applicable detention standards.”

These are not the only deaths that occurred, however. ICE acknowledges on its website that 31 deaths have occurred between May 2012 and mid-June of this year. It is unclear whether ICE intends to release information about the additional 13 deaths that have occurred.

Even so, these new findings add to a growing body of evidence showing what HRW calls “egregious violations” of medical care standards in detention centers. A February report found such violations contributed to at least eight in-custody deaths over a two-year period.

The public is just beginning to learn more about the deeply rooted problem, Clara Long, a researcher with Human Rights Watch and the lead researcher on the report, explained to Rewire. Long referenced an ongoing investigation by reporter Seth Freed Wessler at the Nation, which explores the numerous deaths that have occurred inside immigrant-only prisons.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

Though the death reviews released by ICE provide further insight into the conditions inside detention centers, the bigger concern among researchers and advocates is what they don’t know. For example, HRW worked with two independent medical experts to review the 18 death reviews released by ICE. The experts concluded that substandard medical care “probably contributed to the deaths of seven of the 18 detainees, while potentially putting many other detainees in danger as well.” Long told Rewire that the information provided by ICE simply wasn’t enough for their independent medical experts to determine that all 18 deaths were related to inadequate medical care, but that it was “likely.”

So there is the larger, systemic issue of inadequate medical care. Researchers at HRW also don’t know exactly how ICE collects information or why the agency releases information when it does. There’s also the core of the issue, as Long noted to Rewire: that the United States “unnecessarily” detains undocumented immigrants in “disturbing conditions” for prolonged periods of time.

Major Failures Lead to Death

The new HRW report identified two of the most dangerous ways ICE is failing migrants in detention: not following up on symptoms that require assistance and not responding quickly to emergencies. Both failures are illustrated by the case of 34-year-old Manuel Cota-Domingo, who died of heart disease, untreated diabetes, and pneumonia after being detained at the Eloy Detention Center in Eloy, Arizona.

ICE’s death review for Cota-Domingo suggests there was a language barrier and that Cota-Domingo was worried about having to pay for health care, which isn’t surprising given that detention centers make migrants pay for things like phone calls to their attorneys and family members. HRW asked Corrections Corporation of America, the company that runs the Eloy Detention Center, about potential fees for medical care, and it said there are no fees for such services at Eloy. For whatever reason, Cota-Domingo was not aware he had a legal right to access the medical care he needed.

When it became clear to his cellmate that Cota-Domingo was in serious need of medical attention and was having trouble breathing, the cellmate “banged on a wall to get a guard’s attention. His cellmate said he did that for three hours before anyone came to help,” Long said. The researcher told Rewire the death report outlines how investigators checked to see if the banging would have been audible to correctional officers.  It was. “Once [the cellmate] got their attention, our medical experts said this was something that should have been followed up on immediately, but the nurse decided to wait several hours before doing anything. All of these sluggish responses went on for eight hours. This is not how you treat an emergency,” Long said.

As Human Rights Watch noted in the report, “When officers finally notified medical providers of his condition, they delayed evaluating him and finally sent him to the hospital in a van instead of an ambulance. Both medical experts concluded that the combination of these delays likely contributed to a potentially treatable condition becoming fatal.”

In other death reviews by ICE, the agency’s own records show “evidence of the misuse of isolation for people with mental disabilities, inadequate mental health evaluation and treatment, and broader medical care failures.” Tiombe Kimana Carlos, Clemente Mponda, and Jose de Jesus Deniz-Sahagun all committed suicide in ICE detention after showing signs of “serious mental health conditions.” HRW’s independent experts determined that “inadequate mental health care or the misuse of isolation may have significantly exacerbated their mental health problems.”

It’s important to note that none of the death reviews released by ICE admit any wrongdoing, and that’s primarily because they don’t seek to examine whether medical negligence was at play. The reports simply present information about the deaths.

“There is no conclusion drawn, really,” Long told Rewire. “There’s one [report] in particular that even goes beyond that; it doesn’t even take into account the quality of care that led to the death, even though it’s clearly an issue of quality of care. That raises the question: What is the report for? ICE doesn’t conclude the cause. If you read [the death reviews], you can see there’s a lot of detailed information included in them that allows someone with expertise in correctional health care and who is familiar with how these systems should work, to make an assessment about whether care contributed to death, but that’s not something ICE doesat least not in the information we are able to access.”

ICE’s Murky Death-Review Process 

In a statement to Rewire, ICE explained that when a person dies while in the agency’s custody, their “death triggers an immediate internal inquiry into the circumstances.” The summary document ICE releases to the public is “the result of exhaustive case reviews conducted by ICE’s own Office of Detention Oversight (ODO), which was established in 2009 as part of the agency’s comprehensive detention reforms,” Lori K. Haley, a spokesperson with ICE, told Rewire in a prepared statement.

In fact, the ODO was created as a direct result of a series of reforms from the Obama administration after reports of human rights abuses and deaths in detention centers. The death review it produces includes a mix of findings from ICE’s own investigators and from a Beaumont, Texas-based company called Creative Corrections.

According to its website, Creative Corrections serves “local, state and federal government agencies,” offering “training, advising, professional management and consulting services” in “correctional, law enforcement, rule of law, and judicial systems.” The company contracts include the Department of Homeland Security (DHS).

“From what we can see from the documents, both ICE and Creative Corrections interview various people involved, check records, do what seems to be a pretty robust investigation for the death review,” Long said. “Unfortunately, in the set of death reviews that we used for this investigation, [the public doesn’t] have access to the Creative Corrections reports or any of the exhibits that go along with them.”

As the ICE spokesperson noted, the summary documents are typically written by ICE staff. The documents released to the public do not include medical records, full reports from Creative Corrections, or any exhibits that would provide more insight into the apparent medical neglect resulting in an estimated 161 people dying in ICE custody since October 2003. Six migrants have died in ICE custody since March 2016, two of whom died at two different detention centers in the same week. The causes of these most recent deathsand whether they can be attributed to medical neglect—is still unknown.

“If we had access to all of the information gathered during these investigations, including the reports from Creative Corrections, they would be very rich sources of information,” Long said.

Long and other researchers are also hoping for more information regarding the deaths that happen just after migrants are released from ICE custody. Teka Gulema, an Ethiopian asylum seeker detained at Etowah County Detention Center in Gadsden, Alabama, was released from ICE custody in November 2015 while in the hospital after becoming paralyzed from a bacterial infection acquired in detention. He died in January.

“One concern we have, and it’s a very big fear, is that there are multiple reports of folks who are released from ICE custody while in critical condition,” Long said. “When they die, they are no longer counted as in-custody deaths [by ICE]. We’re worried that’s a loophole being exploitedand for obvious reasons, we don’t have a number in terms of how often this is happening.”

The researcher said she has “no idea” when or why ICE decides to release information, including death reviews.

ICE did not respond to Rewire‘s request for information about its schedule or process for releasing such information.

“Maybe they released the 18 reports because they were cleared for release. Maybe a congressional office asked for them. Maybe they decided to be transparent. It could have been a [Freedom of Information Act] request from the ACLU. I wish I knew, but we really have no idea who decides—or why they decide—to release information, especially without making anyone aware that it’s been released,” the researcher told Rewire.

In April, ICE posted a series of spreadsheets about the inner workings of the detention system on their website that Long said provided a lot of information about how detention operates. The spreadsheets were removed from the site in a matter of days, too soon for many researchers—including HRW—to download them all.

“It’s a big system. We still don’t totally know how it works, which in itself is a major problem,” Long said. “One of the biggest lessons we’ve learned is to always check the ICE website. You never know what you’ll find.”

Rethinking Detention

DHS secretary Jeh Johnson is engaging in what some advocates are calling an “enforcement overdrive,” by funneling more undocumented immigrants into an already overcrowded detention system thanks to the detention bed quota established in 2009. This quota requires 34,000 undocumented migrants be locked up each day. It is in place to ensure more people get deported, though it’s costing taxpayers $2 billion a year while also creating “a profitable market for both private prison corporations and local governments,” the National Immigration Forum has said.

Reporting for the Nation, Michelle Chen recently noted that “migrants are warehoused under convoluted partnerships involving private vendors and state, local, and federal agencies. Homeland Security may contract out security duties to, or use facilities owned by, private vendors—dominated by Corrections Corporation of America (CCA) and GEO Group—with preordained headcount distributions ranging from 285 in Newark to more than 2,000 in San Antonio.”

Long told Rewire that 80 percent of migrants currently in detention are in what is considered “mandatory detention,” which, according to the Immigrant Legal Resource Center, means that “non-citizens with certain criminal convictions must be detained by ICE. People who are subject to mandatory detention are not entitled to a bond hearing and must remain in detention while removal proceedings are pending against them.” This also means that those in mandatory detention aren’t allowed to have an individual assessment by ICE of their case, “so they just sit in immigration detention indefinitely,” Long said.

“This system doesn’t work. We’re detaining far too many people for far too long and not determining on an individual level if they should be detained in the first place, taking into account all of the options available,” Long said. Options include being monitored by ICE using telephonic and in-person reporting, curfews, and home visits.

Long joins a long list of undocumented community members, researchers, organizers, activists, and other advocates pushing for the Obama administration—and whoever comes after it—to see detention as a last resort, rather than the only resort.

“We spend a lot of time talking about the disturbing conditions in detention centersthat’s what our report is about. But step one requires taking a step back and rethinking this system and how it’s unnecessary and also abuses vulnerable peoples’ rights,” Long said. “In terms of the legality of treating people this way, under U.S. and international law, people who are detained are entitled to medical treatment. The state has an obligation to provide care to this population. They are failing, and people are dying.”

Culture & Conversation Abortion

With Buffer Zones and Decline of ‘Rescues’ Came Anti-Choice Legal Boom, Book Argues

Eleanor J. Bader

University of Denver's Joshua Wilson argues that prosecutions of abortion-clinic protesters and the decline of "rescue" groups in the 1980s and 1990s boosted conservative anti-abortion legal activism nationwide.

There is nothing startling or even new in University of Denver Professor Joshua C. Wilson’s The New States of Abortion Politics (Stanford University Press). But the concise volume—just 99 pages of text—pulls together several recent trends among abortion opponents and offers a clear assessment of where that movement is going.

As Wilson sees it, anti-choice activists have moved from the streets, sidewalks, and driveways surrounding clinics to the courts. This, he argues, represents not only a change of agitational location but also a strategic shift. Like many other scholars and advocates, Wilson interprets this as a move away from pushing for the complete reversal of Roe v. Wade and toward a more incremental, state-by-state winnowing of access to reproductive health care. Furthermore, he points out that it is no coincidence that this maneuver took root in the country’s most socially conservative regions—the South and Midwest—before expanding outward.

Wilson credits two factors with provoking this metamorphosis. The first was congressional passage of the Freedom of Access to Clinic Entrances (FACE) Act in 1994, legislation that imposed penalties on protesters who blocked patients and staff from entering or leaving reproductive health facilities. FACE led to the establishment of protest-free buffer zones at freestanding clinics, something anti-choicers saw as an infringement on their right to speak freely.

Not surprisingly, reproductive rights activists—especially those who became active in the 1980s and early 1990s as a response to blockades, butyric acid attacks, and various forms of property damage at abortion clinics—saw the zones as imperative. In their experiences, buffer zones were the only way to ensure that patients and staff could enter or leave a facility without being harassed or menaced.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

The second factor, Wilson writes, involved the reduced ranks of the so-called “rescue” movement, a fundamentalist effort led by the Lambs of Christ, Operation Rescue, Operation Save America, and Priests for Life. While these groups are former shadows of themselves, the end of the rescue era did not end anti-choice activism. Clinics continue to be picketed, and clinicians are still menaced. In fact, local protesters and groups such as 40 Days for Life and the Center for Medical Progress (which has exclusively targeted Planned Parenthood) negatively affect access to care. Unfortunately, Wilson does not tackle these updated forms of harassment and intimidation—or mention that some of the same players are involved, albeit in different roles.

Instead, he argues the two threads—FACE and the demise of most large-scale clinic protests—are thoroughly intertwined. Wilson accurately reports that the rescue movement of the late 1980s and early 1990s resulted in hundreds of arrests as well as fines and jail sentences for clinic blockaders. This, he writes, opened the door to right-wing Christian attorneys eager to make a name for themselves by representing arrested and incarcerated activists.

But the lawyers’ efforts did not stop there. Instead, they set their sights on FACE and challenged the statute on First Amendment grounds. As Wilson reports, for almost two decades, a loosely connected group of litigators and activists worked diligently to challenge the buffer zones’ legitimacy. Their efforts finally paid off in 2014, when the U.S. Supreme Court found that “protection against unwelcome speech cannot justify restrictions on the use of public streets and sidewalks.” In short, the decision in McCullen v. Coakley found that clinics could no longer ask the courts for blanket prohibitions on picketing outside their doors—even when they anticipated prayer vigils, demonstrations, or other disruptions. They had to wait until something happened.

This, of course, was bad news for people in need of abortions and other reproductive health services, and good news for the anti-choice activists and the lawyers who represented them. Indeed, the McCullen case was an enormous win for the conservative Christian legal community, which by the early 2000s had developed into a network united by opposition to abortion and LGBTQ rights.

The New States of Abortion Politics zeroes in on one of these legal groups: the well-heeled and virulently anti-choice Alliance Defending Freedom, previously known as the Alliance Defense Fund. It’s a chilling portrait.

According to Wilson, ADF’s budget was $40 million in 2012, a quarter of which came from the National Christian Foundation, an Alpharetta, Georgia, entity that claims to have distributed $6 billion in grants to right-wing Christian organizing efforts since 1982.

By any measure, ADF has been effective in promoting its multipronged agenda: “religious liberty, the sanctity of life, and marriage and the family.” In practical terms, this means opposing LGBTQ inclusion, abortion, marriage equality, and the right to determine one’s gender identity for oneself.

The group’s tentacles run deep. In addition to a staff of 51 full-time lawyers and hundreds of volunteers, a network of approximately 3,000 “allied attorneys” work in all 50 states to boost ADF’s agenda. Allies are required to sign a statement affirming their commitment to the Trinitarian Statement of Faith, a hallmark of fundamentalist Christianity that rests on a literal interpretation of biblical scripture. They also have to commit to providing 450 hours of pro bono legal work over three years to promote ADF’s interests—no matter their day job or other obligations. Unlike the American Bar Association, which encourages lawyers to provide free legal representation to poor clients, ADF’s allied attorneys steer clear of the indigent and instead focus exclusively on sexuality, reproduction, and social conservatism.

What’s more, by collaborating with other like-minded outfits—among them, Liberty Counsel and the American Center for Law and Justice—ADF provides conservative Christian lawyers with an opportunity to team up on both local and national cases. Periodic trainings—online as well as in-person ones—offer additional chances for skill development and schmoozing. Lastly, thanks to Americans United for Life, model legislation and sample legal briefs give ADF’s other allies an easy way to plug in and introduce ready-made bills to slowly but surely chip away at abortion, contraceptive access, and LGBTQ equality.

The upshot has been dramatic. Despite the recent Supreme Court win in Whole Woman’s Health v. Hellerstedt, the number of anti-choice measures passed by statehouses across the country has ramped up since 2011. Restrictions—ranging from parental consent provisions to mandatory ultrasound bills and expanded waiting periods for people seeking abortions—have been imposed. Needless to say, the situation is unlikely to improve appreciably for the foreseeable future. What’s more, the same people who oppose abortion have unleashed a backlash to marriage equality as well as anti-discrimination protections for the trans community, and their howls of disapproval have hit a fever pitch.

The end result, Wilson notes, is that the United States now has “an inconstant localized patchwork of rules” governing abortion; some counties persist in denying marriage licenses to LGBTQ couples, making homophobic public servants martyrs in some quarters. As for reproductive health care, it all depends on where one lives: By virtue of location, some people have relatively easy access to medical providers while others have to travel hundreds of miles and take multiple days off from work to end an unwanted pregnancy. Needless to say, this is highly pleasing to ADF’s attorneys and has served to bolster their fundraising efforts. After all, nothing brings in money faster than demonstrable success.

The New States of Abortion Politics is a sobering reminder of the gains won by the anti-choice movement. And while Wilson does not tip his hand to indicate his reaction to this or other conservative victories—he is merely the reporter—it is hard to read the volume as anything short of a call for renewed activism in support of reproductive rights, both in the courts and in the streets.