Tamesha Means (via the ACLU)

Tamesha Means (via the ACLU)

By Ann Neumann

And if thou say in thine heart, How shall we know the word which the Lord hath not spoken? Deuteronomy 18:21 KJV

Tamesha Means was eighteen weeks pregnant when her water broke. The nearest hospital, Mercy Health Partners, gave her Tylenol and sent her home. Twice. The staff at Mercy never told Means that the fetus she was carrying was no longer viable (could not be carried to term). They didn’t tell her that her health was in danger. When she returned a third time, in severe pain and with signs of an infection, again the hospital prepared to send her home. According to court documents, as she waited to be discharged “the fetus breached her cervix and she began to deliver. The baby died shortly after birth. MHP then told Ms. Means she needed to make funeral arrangements.”

An unprecedented case was brought by the American Civil Liberties Union on behalf of Means at the end of 2013. Unprecedented because it doesn’t charge the attending doctor or even Mercy Health Partners with negligence. It charges the U.S. Conference of Catholic Bishops. Mercy is a Catholic hospital and therefore operates according to the Catholic Church’s Ethical and Religious Directives, seventy-two “laws” written by the USCCB and approved by the Vatican. The complaint reads:

Ms. Means brings this negligence action against Defendants for their roles in promulgating the Directives and directing MHP to adhere to them. As a direct result of these religious Directives, Ms. Means suffered severe, unnecessary, and foreseeable physical and emotional pain and suffering. She seeks both damages and a declaration that Defendants’ actions were negligent, not only to provide a remedy for the trauma she suffered, but also to prevent other women in her situation from suffering similar harm in the future.

A public health educator investigating Ms. Means’ case found four other such examples of substandard medical care at the Eastern Michigan hospital. When the educator asked why no attempt was made to ease Means’ pain or abort the fetus for the sake of her health, an MHP physician, according to the case, responded, “MHP’s decision not to induce labor was proper because Defendant USCCB’s Directives prohibited MHP from inducing labor in that situation.”

The enforcement of the USCCB’s Directives is not limited to Mercy and Means’ case is not isolated. There are almost 650 hospitals in the country operating under Catholic leadership–and therefore the Ethical and Religious Directives. (See Jill Filipovic’s recent article for Al Jazeera for other examples.) A new report released in December 2013 by the American Civil Liberties Union and MergerWatch, a nonprofit that monitors hospital consolidation, updates a similar report released in 2002 and illustrates not only the reach of the USCCB’s Directives but their exponential expansion as Catholic hospitals and health care networks acquire non-denominational facilities. (Means’ case is discussed in the report.)

In the decade between 2001 and 2011, the number of Catholic hospitals increased by sixteen percent, even while the number of other non-profit hospitals declined. In Washington state, for instance, where hospital mergers have sharply increased, one quarter of all hospitals are now Catholic. Ten of the top twenty-five health systems (hospital networks, such as health maintenance organizations (HMOs), that are organized under a unifying management) are Catholic, as the report notes, with $213.7 billion in gross patient revenue. These hospitals are all non-profit, meaning they receive huge tax breaks from state and local government while giving an average of only 2.8% of total patient revenue to charity. And yet, Catholic facilities receive negligible financial support from Catholic sources.

It’s important to note that the Ethical and Religious Directives, which I’ve written about elsewhere (see Guernica magazine, January 2013, and New York Law School Review, January 2014), apply to a range of standard (and legal) medical services, not just abortion. Sterilization (including tubal ligation), emergency contraception, fertility treatments for same-sex couples and counseling for STD or AIDS prevention are all restricted. Where Death with Dignity is legal (Washington, Oregon, Montana, Vermont and New Mexico) it is also prohibited by Catholic leaders. Indeed, even informing a patient about them or referring one to a facility that does provide them is prohibited.

Since the 1973 Roe v. Wade decision, which spurred Catholic and evangelical groups to combine forces to create the “pro-life” movement, U.S. law has accommodated or promoted religious ethics in medical practice. Once abortion was legal, laws were needed to “protect” such medical facilities from having to perform them. Since then, Catholic health care and standard medical practice have continued to diverge as medical advancements created new areas of “moral” contest.

Julia and Joseph Quinlan with a photo of their daughter Karen Ann. (API Wide World Photos)

Julia and Joseph Quinlan with a photo of their daughter Karen Ann.
(API Wide World Photos)

In 1976, when the parents of Karen Ann Quinlan, a young New Jersey woman who entered a persistent vegetative state, sued St. Clare’s Hospital to remove their daughter from a ventilator, they cited Catholic teachings to support the request. Quinlan’s condition was new, the result of medical advancements that upended existing definitions of death. Her case was groundbreaking. At the time, New Jersey Bishop Lawrence B. Case submitted an amicus (friend-of-the-court) brief that recorded the answers of Pope Pius XII when he addressed the following question in 1957:

Does the anesthesiologist have the right, or is he bound, in all cases of deep unconsciousness, even in those that are completely hopeless in the opinion of the competent doctor, to use modern artificial respiration apparatus, even against the will of the family?

His answer made the following points:

1. In ordinary cases the doctor has the right to act in this manner, but is not bound to do so unless this is the only way of fulfilling another certain moral duty.

2. The doctor, however, has no right independent of the patient. He can act only if the patient explicitly or implicitly, directly or indirectly gives him the permission.

3. The treatment as described in the question constitutes extraordinary means of preserving life and so there is no obligation to use them nor to give the doctor permission to use them.

4. The rights and the duties of the family depend on the presumed will of the unconscious patient if he or she is of legal age, and the family, too, is bound to use only ordinary means.

5. This case is not to be considered euthanasia in any way; that would never be licit. The interruption of attempts at resuscitation, even when it causes the arrest of circulation, is not more than an indirect cause of the cessation of life, and we must apply in this case the principle of double effect. 

The family had received such support even before the case came to trial. Quinlan’s parents were Catholic and had consulted their local chaplain as they struggled with their decision. But by 1989, the Church had shifted its stance, isolating some treatments as “extraordinary means” and others, such as feeding tubes, as not. The Church filed an amicus brief opposing the removal of another young patient, Nancy Cruzan, from “life support,” this time a feeding tube. Writes William H. Colby, the Cruzans’ lawyer:

Richard Doerflinger, a spokesman for the U.S. Conference of Catholic Bishops, had emerged from a meeting in August where they discussed the Cruzan case and spoke to reporters. He said that the brief from the Bishops in Cruzan would urge the U.S. Supreme Court not to “constitutionalize” the right to die, as the right to abortion had been constitutionalized sixteen years earlier in Roe v. Wade, leaving “no room for the Catholic point of view.”[1]

“The Catholic point of view,” Doerflinger implied, is directed by Church leadership, not individuals. This reasoning, that religious conscience resides with an institution, is at the heart of a host of health care controversies and has turned the guarantee of religious freedom in the US on its ear. Hobby Lobby and Conestoga Woods, two corporations whose owners wish to legally deny their employees access to insurance coverage for contraception because they themselves disapprove of it are two examples of cases approaching the Supreme Court. Neither corporation is owned by Catholics but their cause, dictating the autonomy of their employees, is one that the Catholic Church has put its weight behind because it  enforces with their teachings.

One’s body, Doerflinger told me when I interviewed him in 2011, “isn’t one’s own.”  It’s a chilling statement, particularly for those who are not Catholic but, like Tamesha Means, find themselves in a facility that is bound to Catholic teaching. Moreover, it’s a statement that gets at the heart of discrepancies between Catholic hospital practices (as dictated by an employer) and those at nondenominational institutions. When do patients and their families have autonomy to make their own health care decisions? It goes without saying that the Catholic Church’s greatest limits to autonomy are reserved for the women whose potential role in reproduction has been prioritized over even her own health.  It’s not only important to ask what the Church’s objectives are, but why US law is protecting those objectives, even when applied to those opposed to them: Why is the non-Catholic public, with often no choice of which hospital to attend, subject to the religious regulations of non-profit health care providers?

In subsequent cases concerning the removal of “extraordinary means,” such as the 2005 case of Terri Schiavo, the courts have ruled against the Church. And yet, these are the cases that have made it to the courts and likely represent the very smallest percentage of cases where patients, without the knowledge or means to challenge a health care institution, are left with no choice. Over the last forty years, “pro-life” beliefs regarding patient autonomy have been forced into law across the country.

One recent case illustrates the long arm of Catholic influence. A Texas woman, Marlise Munoz, collapsed in her home and was resuscitated. When she arrived at a nearby hospital, John Peter Smith in Fort Worth, Texas, doctors there determined that she was fourteen weeks pregnant and could not be removed from a respirator because of a law in that state that overrides patient’s wishes regarding removal from “life support.” According to an August 2012 report by the Center for Women Policy Studies, Texas is only one of twelve states where a woman’s advance directive is automatically void if she is pregnant, whether the fetus is viable or not. A full thirty-seven states have enacted some form of exclusion for pregnancy to their advance directive status.

Marlise Munoz (family photo)

Marlise Munoz (family photo)

Another way the law has allowed religious concepts to affect standard medical treatment is by the passage of “conscience clauses” that prioritize the rights of medical staff and their employers over the rights of patients. (For more on the history of such clauses, see the 2010 report “In Good Conscience,” produced by Catholics for Choice.)

Americans’ idea of what religious freedom means has never been static, because conceptions of morality and personal autonomy have continued to shift. Who decides what is for the good of the public? Which beliefs are worthy of legal protection? Which lives are most valuable? Tamesha Means tragically found herself in danger because others had answered these questions and found their own conscience–or job–more important than her life.  The ACLU’s court case, on behalf of Means, states that Mercy Health Partners is required to follow the USCCB’s Directives on “condition of medical privileges and employment.” In other words, not only is Means subject to the authority of the Catholic bishops, but so are the doctors and health care providers–employee discrimination laws be damned–who work for Catholic institutions. Unless the courts begin to challenge Catholic authority, the autonomy, conscience, and rights of all of us will increasingly be secondary to those of the bishops.

***

“The Patient Body” is a monthly column about the intersection of religion and medicine. Prior columns can be read here:

Hospitals and the Pretense of Charity

A Closely Held Business

What’s a Kidney Worth

An Irresistible Force

 

Ann Neumann is a Visiting Scholar at the Center for Religion and Media at New York University and contributing editor at The Revealer and Guernica magazine. Neumann is currently writing a book about a good death.



[1] William H. Colby, Unplugged: Reclaiming the Right to Die in America (Amacon, 2008), p. 172