Analysis Religion

Bishops Tap Veteran of Islamophobic, Homophobic Legal Shop as Top Flack

Adele M. Stan

In choosing Daniels as his hand-picked spokesperson, Cardinal Dolan has laid bare just how radically the U.S. Catholic Church has turned to the right in the Obama years.

Whosoever desires constant success must change his conduct with the times. —Niccolo Machiavelli

At a gathering of Catholics in his archdiocese last year, Cardinal Timothy M. Dolan, the archbishop of New York, uttered a strategic point that would have done Machiavelli proud. The bishops, he said, are perhaps not the church’s best messengers.

“In the public square, I hate to tell you, the days of fat, balding Irish bishops are over,” he told his flock, according to the New York Times, at a diocesan convocation on public policy. Reporting for the Times, Tim Stelloh and Andy Newman wrote of an example he gave the crowd, an apparent reference to the hiring of Helen Alvaré by the National Conference of Catholic Bishops in 1990:

[Dolan] told a story about bishops hiring an “attractive, articulate, intelligent” laywoman to speak against abortion and said it was “the best thing we ever did…”

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Dolan, as president of the United States Conference of Catholic Bishops (USCCB), decided this week to operationalize his assessment by hiring Kim Daniels, a former operative for Sarah Palin’s political action committee, as his spokesperson—a new position with a much broader mission than that covered by Alvaré in the 1990s.

An attorney and youthful mother of six who echoes the bishops’ disdain for contraception and abortion, Daniels is a smart cookie with an appealing personality. In other words, an “attractive, articulate, intelligent” laywoman.

When the USCCB announced Daniels’s appointment, the thing that grabbed reporters’ attention was her work in 2010 as an operative for Sarah Palin’s political action committee, SarahPAC—a résumé entry conveniently omitted from the bishops’ announcement about their new hire. If there was any doubt remaining of the bishops’ total alignment with the most right-wing part of the Republican Party, that data point should lay it to rest. But the rest of Daniels’ career is far more interesting—and troubling.

The Reframing of Religious Freedom

Over the course of the last several decades, as reasonable people, including most lay Catholics, increasingly rejected the church’s medieval worldview on women’s rights, human sexuality, and LGBTQ rights, the political power of U.S. bishops has been on the wane. During the debate over health-care reform, President Barack Obama went around the prelates in order to confer some Catholic buy-in on the deal, ultimately winning the approval of a number of highly placed nuns, who signed a letter to that effect, as well as the head of the Catholic Health Association, who also happens to be a Catholic sister.

The bishops were incensed. At that moment, their lack of sway over their own people was revealed for all to see. They needed a new angle, one that could also speak to the hearts of those ordinary Americans who, in the wake of the church’s massive child-sex-abuse scandal, now judged them to be mere mortals, and deeply flawed mortals at that. Enter the Red, White, and Blue.

The success of the Tea Party movement, with its bigoted and misogynist underpinnings dressed in the regalia of patriotism, was apparently not lost on the bishops. On the heels of their humiliating defeat with the Affordable Care Act, the bishops found a new, patriotic-sounding cause to wrap around their attempts to codify prejudice and discrimination as secular law: religious freedom, which is guaranteed by the First Amendment to the Constitution. Summon the fife and drum!

Trouble is, the bishops’ notion of religious freedom differs a bit from that of the founders, who sought to avoid the establishment of a state religion by promising Americans freedom of worship. What the bishops seek, on the other hand, is the right to impose their religious views on those who do not subscribe to their theology. Any impediment to their totalitarian view is now framed as a breach of their religious freedom. And Kim Daniels has been deeply involved in the advancement of this strategy.

Media-Friendly and Studio Ready Church Ladies

After her brief tenure with SarahPAC, Daniels, together with National Review Online columnist Kathryn Jean Lopez, created a media platform for the two women called Catholic Voices USA. The aim of the organization is to fulfill some of what Dolan had called for: the marshalling of informed Catholic laypeople who can plead the church’s case to the public. From the CVUSA mission statement:

We’re media-friendly and studio-ready, and offer an authoritative (but not official) group of articulate speakers who make the Catholic case in interviews and debates — clearly, reasonably, and compellingly.

Daniels has used that platform to speak out not only against abortion and contraception, but also the inclusion of same-sex partner rights in immigration reform—on the basis of Catholic teaching.

The bishops threw a fit upon learning that Catholic-affiliated institutions whose main function is not religious (for example, hospitals) would not be exempted, under the Affordable Care Act, from the mandatory provision of prescription contraception by employer-provided health-care plans. And Daniels stepped up to the plate, joining Helen Alvaré, now a law professor at George Mason University after leaving her post as the director of planning and information for the National Council of Catholic Bishops’ Pro-life Secretary, in launching a petition, which they say now has 37,000 signatures, claiming the administration doesn’t speak for women.

Daniels, who worked on contract for the bishops prior to her appointment by the USCCB, also participated in the Tea Partyish “Fortnight for Freedom” the bishops launched last summer in protest of the contraception mandate. (Read Religion Dispatches’ Sarah Posner’s take here.)

But Daniels’ brief tenure with SarahPAC wasn’t her only eyebrow-raising employment experience that the bishops left out of their announcement. Under her signature on the anti-contraception-mandate petition, Daniels identifies herself as “Former Counsel, Thomas More Law Center”; she left that organization in 2009, and signed the petition in 2012. That means something, because the Thomas More Law Center (TMLC) is a virulently theocratic, anti-woman, anti-gay, and Islamophobic non-profit law firm to which Daniels devoted nine years of her career.

The writer of the USCCB announcement, however, glossed over that part of Daniels’ work history, simply describing her as “an attorney whose practice has focused on religious liberty matters.”

The Thomas More Law Center

Remember that case about teaching “intelligent design” (a fancy name for creationism) in Pennsylvania? That suit was fomented by the Thomas More Law Center; its officials literally shopped around intelligent design textbooks to public school districts, hoping to find one that would be willing to take up the challenge in exchange for TMLC’s legal defense when secularists launched a lawsuit. In Dover, Pennsylvania, the school board did—and lost big in a 2005 court decision. (That debacle led former U.S. Sen. Rick Santorum (R-PA) to resign from the advisory board of the Thomas More Law Center.)

The center also launched a 2002 lawsuit against a Planned Parenthood chapter for failing to inform abortion patients of the (non-existent) link between abortion and breast cancer. It lost that one, too, and the plaintiffs were made to pay Planned Parenthood’s legal fees.

Islamophobia and “Religious Liberty”

Lately, the Thomas More Law Center is making a name for itself in the burgeoning field of Islamophobia, having added Rep. Michele Bachmann (R-MN) and former Rep. Allen West (R-FL) to its advisory board, where they join Alan Keyes, the former UN ambassador and anti-choice zealot who often accompanies Operation Rescue founder Randall Terry in his antics.

Last year, TMLC President Richard Thompson claimed that the education of the U.S. military has been taken over by the Muslim Brotherhood. From an October report by Brian Tashman at Right Wing Watch:

Thompson said that Sharia law is becoming part of U.S. law and that the government is unable to fight it because Americans are too sensitive to criticize Islam, and so we are now “being destroyed from within.”

On May 2, the TMLC website featured on its home page a link to a story about Lt. Col. Matthew Dooley, one of its clients, in Soldier of Fortune magazine, a publication for mercenaries. Dooley is pursuing an administrative appeal in the Army over his rejection for a command post after he was fired as an instructor at the Joint Forces Staff College in Norfolk, Virginia, for teaching a course that advocated “total war” against Islam. Dooley was canned by the Joint Chiefs of Staff after Spencer Ackerman, a reporter for Wired’s Danger Room blog, wrote:

The course instructed senior officers at the lieutenant colonel, commander, colonel and Navy captain level that “there is no such thing as ‘moderate Islam,’” and that wartime protections against civilians of Islamic countries were “no longer relevant.”

Dooley’s course materials, obtained by Ackerman, envisioned a strategy for “reducing Islam to cult status” by destroying the holy cities of Mecca and Medina.

It should be said that I found no evidence that Daniels worked for the Islam-bashing clients of the Thomas More Law Center—but neither has she tried to distance herself from the center.

The Catholic News Service described Daniels, while on the TMLC staff, as having “specialized in conscience-rights issues, testifying in opposing legislation that would place regulations on pro-life pregnancy crisis centers and bills that would force pharmacists to dispense morning-after pills.”

Before the Maryland State Senate in 2008, Daniels testified against a legislative proposal that would have mandated crisis pregnancy centers (CPCs) that don’t offer information on abortion or contraception to tell patients that the centers are exempt from providing factually accurate information. Daniels’ objection was that the legislation would violate the First Amendment by requiring CPCs to make a “false statement”—because they’re bound by their internal guidelines to always tell the truth (meaning, of course, the truth according to their biblical or magesterial interpretation). To the joy of anti-choice groups, the bill ultimately failed.

Since Daniels’s departure, the Thomas More Law Center has also been a lead player in a cottage industry of legal challenges to the Affordable Care Act, especially its contraception mandate. In its most recent contraception mandate case—its fourth, according to the website—TMLC is representing Eden Foods, the health-food company that wants to claim a religious freedom exemption from including contraception in the health insurance it provides its employees.

In choosing Daniels as his hand-picked spokesperson, Cardinal Dolan has laid bare just how radically the U.S. Catholic Church has turned to the right in the Obama years.

News Health Systems

Anti-Choice Group Files Lawsuit Over Newly Signed Law That Protects Illinois Patients

Michelle D. Anderson

The policy, which is an amendment to the Illinois Health Care Right of Conscience Act, requires physicians and medical facilities to to provide patients upon request with information about their medical circumstances and treatment options consistent with "current standards of medical care," in cases where the doctor or institution won’t offer services on religious grounds.

CORRECTION: This piece has been updated to clarify the scope of SB 1564 and which groups are opposing it.

A conservative Christian legal group has followed through on its threat to use litigation to fight against a new state policy that protects patients at religiously-sponsored hospitals in Illinois.

The Alliance Defending Freedom (ADF) on Friday filed a lawsuit in the Circuit Court of the 17th Judicial Circuit in Winnebago County against Illinois Gov. Bruce Rauner and Bryan A. Schneider, the secretary of the Illinois Department of Financial & Professional Regulation.

Rauner, a Republican, signed the contested policy, SB 1564, into law on July 29.

The ADF, which warned Rauner about signing the bill in a publicized letter and statement in May, filed the complaint on behalf of several fake clinics, also known as crisis pregnancy centers. These included the Pregnancy Care Center of Rockford and Aid for Women, Inc. Anti-choice physician Dr. Anthony Caruso of A Bella Baby OBGYN—also known as Best Care for Women—was also named as a plaintiff.

“Alliance Defending Freedom is ready and willing to represent Illinois pro-life pregnancy centers if SB 1564 becomes law,” the group said in May. The ADF wrote on behalf of several anti-choice groups, claiming SB 1564 violated the Illinois state law and constitution and risked putting federal funding, such as Medicaid reimbursements, in jeopardy.

In February 2015, state Sen. Daniel Biss (D-Skokie) introduced the policy, which is an amendment to the Illinois Health Care Right of Conscience Act.

The revised law requires physicians and medical facilities to provide patients upon request with information about their medical circumstances and treatment options consistent with “current standards of medical care,” in cases where the doctor or institution won’t offer services on religious grounds.

The new policy also gives doctors and medical institutions the option to provide a referral or transfer the patient.

Unlike an earlier version of the legislation, the version passed by Rauner does not require hospitals to confirm that providers they share with patients actually perform procedures the institutions will not perform; they must only have a “reasonable belief” that they do, Rewire previously reported.

As previously noted by Rewire:

Catholic facilities often follow U.S. Conference of Catholic Bishops religious directives that generally bar treatments such as sterilization, in vitro fertilization, and abortion care. The federal Church Amendment and some state laws protect these faith-based objections.

The plaintiffs, which are also being represented by Mauck & Baker LLC attorney Noel Sterett, argued in a statement that the Illinois Constitution protects “liberty of conscience,” and quoted a passage from state law that says “no person shall be denied any civil or political right, privilege or capacity, on account of his religious opinions.”

Illinois Right to Life and the Thomas More Society joined the ADF in protesting the bill. The Catholic Conference of Illinois (CCI) and the Illinois Catholic Health Association (ICHA) initially protested the bill after it was introduced early last year. However, the two groups later negotiated with the ACLU to pass a different version of the bill that was introduced.

In support of the bill around the time of its introduction in early 2015, the American Civil Liberties Union of Illinois pushed its Put Patients First initiative to help stop the use of religion to deny health care to patients. The advocacy group noted that patients who are miscarrying or facing ectopic pregnancies, same-sex couples, and transgender people and persons seeking contraception such as vasectomies and tubal ligations are particularly vulnerable to these harmful practices.

A new study, “Referrals for Services Prohibited in Catholic Health Care Facilities,” set to be published in Perspectives on Sexual and Reproductive Health in September, suggested that Catholic hospitals often “dump” abortion patients and deny them critical referrals as result of following religious directives outlined by the U.S. Conference of Catholic Bishops (USCCB).

Recent figures from an ACLU and MergerWatch advocacy group collaboration suggest Catholic hospitals make up one in six hospital beds nationwide.

Analysis Health Systems

As Reach of Catholic Hospitals Grows, So Does Risk to Patient Reproductive Health Care

Jessica Mason Pieklo

A recent case in California highlights the ongoing threat that widespread Catholic-affiliated hospitals potentially pose to reproductive health care.

By the close of 2011, one in nine hospital beds in this country existed in a Catholic or Catholic-sponsored health-care facility. If viewed together as one corporate entity, the ten largest Catholic-sponsored health systems of hospitals and clinics would constitute the largest in the country. And these hospitals are routinely denying medical care to women, citing Catholic doctrine as justification.

Case in point: It took months of appeals and the threat of a sex-discrimination lawsuit from the American Civil Liberties Union before one Catholic hospital in California reversed course this month and agreed to allow an area doctor to perform a postpartum tubal ligation on a patient. Mercy Medical Center, owned by Dignity Health of San Francisco—a not-for-profit benefits corporation that was founded by the Sisters of Mercy in 1986 and that operates Catholic hospitals and ancillary care facilities in 17 states—had previously refused to allow Rachel Miller to undergo the procedure when she delivers her third child later this month via a scheduled cesarean section.

Mercy Medical, like all other Catholic hospitals in the country, follows “Ethical and Religious Directives for Catholic Health Care Services” written by the United States Conference of Catholic Bishops. Those directives forbid doctors at Catholic facilities from participating in common reproductive health procedures like tubal ligation, contraception, sterilization, abortion even when the patient’s health is at risk, and in vitro fertilization, referring to many of them as “intrinsically evil.” The rules also direct health-care providers not to inform patients about alternatives inconsistent with the directives, even when those alternatives are the best option for the patient’s health.

In response to Mercy Medical’s original denial of the procedure, Miller’s insurance company had offered to cover her delivery at the UC Davis Medical Center in Sacramento, which would allow her to obtain the tubal ligation. But that hospital is more than 160 miles away. It would have required her to deliver with a different doctor and to force her family to travel that distance to be with her.

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After the American Civil Liberties Union and the ACLU of California sent a demand letter on Miller’s behalf charging that the hospital had unlawfully denied her reproductive health care, Mercy Medical eventually approved the procedure.

“This is a decision that I made with my family and my doctor and no one else should be involved in that process,” said Miller in a statement. “I hope my case will shine a light on this issue so that others aren’t turned away.”

Advocates point out, though, that Miller’s situation was just a small part of a systemic problem. “While we’re grateful Mercy Medical has agreed to provide medical care in this instance for Ms. Miller, the reality remains that there is a clear conflict between the best interests of patients and the directives of the Catholic hospital system,” Elizabeth Gill, senior attorney at the ACLU of Northern California, told Rewire in an interview.

As Gill explained, hospitals like Mercy Medical, which serve the general public, should not be permitted to withhold care based on doctrine. “Religious institutions that provide services to the general public should not be allowed to hold religion as an excuse to discriminate or deny important health care,” said Gill. “With Catholic hospitals increasingly prevalent, including as the only option for some women, Rachel is just one of many women who risk being denied care, because Catholic bishops are telling medical professionals how to operate.”

This presents a real challenge for making sure patients across the country have access to high-quality, comprehensive reproductive health care. Such a difficulty is exacerbated by the fact that across the country, there is no consistency in which Catholic or Catholic-sponsored hospitals strictly adhere to the directives and which do not—as seen with Mercy Medical’s eventual concession to Miller’s requests.

“There are a lot of variations in what Catholic hospitals will do,” Lois Uttley, the director of MergerWatch, a nonprofit group that tracks Catholic mergers in health care, told Rewire.

“It has to do with the stance of their local bishop, it has to do with what system they might be in and what ethical policies they follow,” said Uttley, who holds a master’s degree in public policy.

Overall, though, the reality is that Catholic interference with reproductive health care reaches well beyond Hobby Lobby and the contraception challenges to the Affordable Care Act, or even the web of state-level abortion restrictions. It reaches all the way into the labor and delivery ward.

A Web of Denials

For mostly economic reasons, such as the dominance of insurance companies in driving health-care costs prior to the implementation of the Affordable Care Act, hospitals—including Catholic-sponsored ones—went through a period of rapid mergers in the 1990s. These mergers allowed previously stand-alone facilities to better negotiate prices with insurance companies by consolidating local market share within one hospital system. Catholic facilities merged with other Catholic and non-Catholic ones, in a trend that continues today.

That trend means that the reach of Catholic health-care institutions has spread throughout the United States. According to a 2011 report released by the ACLU and MergerWatch, in many states, such as Washington, Iowa, Wisconsin, and Missouri, almost 30 percent of hospitals are Catholic or Catholic-affiliated. Meanwhile, in California, where Miller was almost denied care, Mercy Medical—itself the fifth largest system in the country—is the state’s largest hospital provider.

Such an overwhelming presence means that for some patients, it’s either a Catholic hospital or no hospital at all. And advocates say that for every Rachel Miller who pushes back against religious refusals of care, there are countless other patients unable to do the same. Hospitals don’t specifically have to disclose their affiliation or notify patients up front that the directives will dictate the range of medical care available, so some patients don’t even know they will be subject to potentially limited services by seeking help at certain facilities.

When it comes to birthing care in particular, the influence of religious doctrines is especially evident when patients request procedures like tubal ligation, which in many cases is the standard of care following labor and delivery. “It makes no sense to tell a woman who is pregnant and wants to have a tubal ligation upon delivery of the child that she has to wait and do that later at another time because the hospital won’t allow it,” said Uttley. “It makes great medical sense to do it at the same time because the woman is already in the hospital, you are paying for the delivery, and in many cases if it is a c-section it makes great sense to do a tubal ligation while the woman is already under anesthesia. It is not good quality to send her away and force her to go back either into the hospital or the doctor’s office and to have a tubal ligation.”

Still, “there are many ordinary women out there who are refused the service and don’t understand that they could argue,” Uttley said.

“The problem is the most acute in areas where patients have no choice and where physicians are limited in where they can practice,” Uttley added. “We hear from doctors, for example, who are practicing in rural areas of western states where there is only a Catholic hospital and these doctors have patients who desperately need a tubal ligation at the time of delivery.”

Uttley continued, “Many times there are also complicating factors for the patient. For example, the woman could be obese, she could have diabetes, she could have hypertension. She could have a lot of complications that make pregnancy quite dangerous for her and she and her doctor have decided that upon delivery of the last child she will have a tubal ligation. We hear from doctors who are distraught at not being able to provide what they see as essential, quality care for their patients.”

Because pregnant patients often work with one OB-GYN, not hospitals, even those who try to avoid the doctrines can end up having their care restricted, Uttley said. She shared one example of a patient with whom her organization was in touch while working on the 2011 report: “There was a woman in upstate New York who already had four children [and who] was having her fifth child, and was talking with her OB-GYN ahead of time about having a tubal ligation at the same time as delivery.”

“The physician had admitting privileges at both a Catholic and a non-Catholic hospital, so they had planned this would take place at the non-Catholic hospital,” she continued. “However, when the time came for her to deliver he was at the Catholic hospital, so she ended up not being able to get the tubal ligation that she wanted even though her doctor did have admitting privileges at a non-Catholic facility because he wasn’t there at the time she delivered.”

These rules can also make obtaining care dangerous for patients experiencing pregnancy complications. Dr. Ashlee Bergin, a practicing OB-GYN in Chicago, shared a story during an interview with Rewire of seeing a patient within the last month who came to Bergin’s non-Catholic-affiliated hospital experiencing a spontaneous miscarriage at about 18 weeks. According to Bergin, the patient was bleeding quite significantly and yet had been turned away from two different Catholic hospitals, because there was still a fetal heartbeat. By the time the patient got to Bergin’s hospital, she was anemic and in an emergency situation.

“In a lot of these situations, it definitely impacts our ability to provide the complete spectrum of care, especially reproductive health care, to women,” Bergin told Rewire. “Catholic doctrine interferes with our ability to provide medically timely care,” she continued. “Not only that, it’s the right thing to do for these women and we are being told we can’t do what’s right for these women because of these doctrines.”

“Ideally, we should be able to provide the full range of reproductive health care for women and Catholic directives don’t allow that happen,” she said.

A recent national survey found that 52 percent of OB-GYNs working in Catholic hospitals experience conflict with religiously based policies about care. Physicians interviewed reported reactions ranging from “mild concern” to “outright shock” about the way the directives impacted their ability to offer treatment to patients experiencing certain emergencies, such as miscarriage or pre-viable premature rupture of membranes (PPROM). In these cases, physicians felt ending the pregnancy via abortion was justified, especially when the failing pregnancy was deeply wanted. The “wantedness” of the pregnancy was referenced in the context of defending the need for treatment and arguing that it was solely for the sake of safety and comfort for the pregnant patient, not because she did not wish to have a child. Still, the directives prohibited the the procedure until there was no longer a fetal heartbeat.

Holding Catholic Hospitals Legally Accountable

Such restrictions on care have yet to be successfully challenged in the courts. In 2010, a then-18 weeks pregnant Tamesha Means showed up at Mercy Health Partners in Muskegon, Michigan, in the middle of having a miscarriage. Her water had broken and she was experiencing severe cramping. Mercy Health, a Catholic-sponsored facility, told Means there was nothing it could do for her, because treatment would have terminated the pregnancy, and sent her home. Means came back the next day, this time in more pain and bleeding, and was again told the course of action was to wait and see.

As detailed in court documents, Means, a mother of three, returned to Mercy Health a third time, this time suffering from a significant infection from her untreated miscarriage. In response, the hospital gave Means some aspirin to treat her fever and prepared to send her home. Before the hospital discharged Means for a third time, she started to deliver. It wasn’t until then that the hospital decided to admit Means and to treat her condition. Means eventually delivered a baby who died within hours of birth.

Means sued, claiming the directives followed by Mercy Health—and other Catholic hospitals—amount to the delivery of negligent care.

A district court dismissed Means’ case on procedural grounds, ruling in part that the doctrine of ecclesiastical abstention prevents courts from reviewing cases like Means’. That doctrine dates back to an 1871 Supreme Court decision, Watson v. Jones, which first established principles limiting the role of civil courts in deciding religious controversies. Watson and the cases that followed limit the power of courts to hear suits “whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by … church judicatories.”

The idea behind the ecclesiastical abstention doctrine is that courts should not settle what would amount to disputes about religious doctrine. In other words, it is not up to the judiciary to decide whether or not particular religious tenets are “correct.” If it involves a question of interpreting church doctrine, the courts are supposed to just stay out of it.

In Means’ case, the defendants, including Mercy Hospital and the United States Conference of Catholic Bishops, claimed the directives offer “a statement of the Roman Catholic Church’s moral and religious postures as it relates to health care issues” and are in place “to provide authoritative guidance on certain moral issues that face Catholic health care today.” Therefore, the defendants argued, a court must interpret the directives in order to assess whether they ensure patients receive reasonable care. In turn, they claim that interpreting the directives in this way means interpreting Catholic theology, which the ecclesiastical abstention doctrine prohibits.

Means’ attorneys responded that the ecclesiastical abstention doctrine was not at issue because they were not asking the court to determine the validity of the directives, but to determine whether the imposition of the directives on Mercy Health caused her harm. It wasn’t the validity of the directives that was at issue, Means’ attorneys argued, it was the delivery of substandard medical care they dictated. But the lower court disagreed, ruling Means’ claims “oversimplifies the text and theological underpinnings of the ERDs, as well as how the Directives are applied in hospital settings.” According to the court:

Plaintiff’s complaint about the unavailability of “direct abortions” under the ERDs would require a nuanced discussion about how a “direct abortion” is defined in Catholic doctrine. Directive 45 clearly prohibits direct abortions, defined as “the directly intended termination of a pregnancy before viability.” Do procedures that directly intend to treat a serious pathologic condition of the mother (such as acute chorioamnionitis and funisitis), and indirectly result in termination of the pregnancy, constitute a direct abortion? (See Directive 47.) When do medical procedures that augment—rather than induce—labor constitute a direct abortion? (See Directive 49.) Must the procedure satisfy the Catholic principle of double-effect to be permissible under the ERDs? (See Directive 45’s discussion of “sole immediate effect” and “material cooperation.”) Can the treating doctor exercise independent judgment or is she required to consult a Catholic ethicist before providing emergency care? (See Directive 37.) Does the ethicist have an obligation to consult the local bishop in his moral and theological analysis of the medical treatment options? (See General Introduction; Directive 37.)

The court continued:

These questions demonstrate how the application of the Directives are inextricably intertwined with the Catholic Church’s religious tenets. This Court is competent to address whether the medical care provided by Mercy physicians, and vicariously provided by Trinity Health, constitute negligence or medical malpractice. However, the Court cannot determine whether the establishment of the ERDs constitute negligence because it necessarily involves inquiry into the ERDs themselves, and thus into Church doctrine.

The court could look at individual applications of care, but could not explore the fact that the directives were the source of that care thanks to the ecclesiastical abstention doctrine. Attorneys representing Means filed an immediate appeal of the decision with the U.S. Court of Appeals for the Sixth Circuit.

That case is still pending. But should conservatives prevail in advancing their argument that the ecclesiastical abstention doctrine insulates Catholic hospitals from medical negligence liability, patients will be left with very few, if any, ways to hold those institutions accountable for delivering any substandard medical care.

A Market-Based Solution?

Although the courts may be doing very little to advance policies that promote good patient care, Uttley hopes the market can do more. While individuals may not think of market-based approaches to care when choosing an OB-GYN, health insurers and employers who offer benefits plans to their workers do when deciding which facilities to contract with.

“There is a big push right now in the country for what is called ‘value-based health care,’” explained Uttley. “It’s a big push of HHS; it’s also a huge drive of many state governments and of insurance companies and employers. They are all looking to purchase health care that meets the standards of quality and cost-effectiveness. It is [MergerWatch’s] position that refusing to give women reproductive health care when they need it doesn’t meet those standards.”

From a government perspective, investing in high-quality, cost-effective care is especially fiscally relevant because at this point, medical services at Catholic facilities are heavily subsidized by taxpayers. In 2011, Catholic-sponsored or -affiliated hospitals billed the federal government approximately $115 billion related to patient care and reported receiving $27.1 billion in net government revenues in 2011, principally from Medicaid.

“There is a big drive to establish quality metrics [for value-based health care] now, and in fact some Catholic hospitals are in the leadership of that movement and do deliver high quality care in other areas of their health-care delivery,” said Uttley.

But when it comes to reproductive care, she says, “this is a big gaping hole, and we see it potentially as quite a challenge for Catholic hospitals and health-care systems to meet their aspirations of delivering quality, cost-effective care when because of doctrine the care ends up being fragmented.”

Ultimately, as seen in the Miller case, the decision to deny a patient reproductive health care based on religious directive is completely, utterly arbitrary. But it has lasting, potentially devastating effects—both for the individuals involved and for those who may rely on the hospital in the future.

“It’s important that people in a community feel good about their hospital and feel like they will get the care they need at that hospital,” said Uttley. “When an incident like the Rachel Miller one occurs, it can rattle that confidence.”

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