The
story of Tamesha Means and her miscarriage three
years ago, if it happened the way her lawyers claim it did, is truly awful: Means
was 18 weeks pregnant when her water broke and she was rushed to a hospital in
Muskegon, Mich. The fetus wasn’t viable, and the pregnancy — Means’ third
— was doomed.
But
doctors at the hospital, part of the Catholic healthcare network known as Mercy
Health Partners, didn’t tell her that, Means’ lawyers say. Instead of the
normal course of treatment — inducing labor and terminating the pregnancy
to stave off potentially risky complications — Means was allegedly kept
in the dark about her condition, given painkillers, and sent home.
Bleeding
and wracked with pain, she returned to Mercy twice over the next day or so and
received more or less the same response, her lawyers claim. Just as she was
about to be sent home a third time, by now feverish from a severe infection,
she began to deliver. The baby died.
The
case has received an enormous amount of attention because of who Means’
attorneys at the American Civil Liberties Union chose to sue last November: not
her doctors or the hospital but the U.S. Conference of Catholic Bishops (USCCB).
Means’ lawyers claim that she was subjected to dangerously
substandard treatment, that her own health was placed in peril, and that she
was deprived of information about her condition because of rules issued by the
bishops conference that govern all Catholic health care in the U.S. The rules —
which Mercy and its staff are required to follow — prohibit abortion, and
as a result, according to Means’ lawyers, doctors would not give up on the
pregnancy.
The
move to sue the bishops was unprecedented, and everyone from the New York Times to the National Catholic Register heralded the case as a new front in the
culture war over religious liberty, gender equality and reproductive care
— a version of the same raging conflict that will play out before the
Supreme Court next week when it hears arguments in the Hobby Lobby/Conestoga Industries contraception cases. Those cases
challenge the Affordable Care Act’s rules requiring employers to provide
birth-control benefits to their workers, even if the employers have religious
objections.
When
the Means suit was filed, the bishops called the allegations “baseless” and “misguided” and defended Catholic
health care’s “stellar history of caring for mothers and infants.” Otherwise,
though, they were silent.
Now,
the bishops and their attorneys have followed up with a motion to dismiss the
case, and ProPublica has taken the first sustained
look at their arguments.
The
bishops, for the most part, have chosen to avoid sweeping language about
constitutional rights and freedoms, instead focusing on the nitty-gritty
procedural issues that are basic to high-stakes civil litigation. They argue, essentially,
that the ACLU has chosen the wrong venue — federal court in Detroit
— to sue (the USCCB is based in Washington D.C.) and is mistaken in
blaming the USCCB for decisions made by individual bishops in their own
dioceses.
The
arguments echo what some legal scholars have been saying for some time: that
the lawsuit is at best a long-shot. A hearing is scheduled for May on the
motion to dismiss.
First
some background: The ACLU and women’s groups have been voicing concern since
the 1990s about the growing role of Catholic health care operations around the
country and what they see as the resulting threats posed to women’s
reproductive rights. Those complaints have grown louder in recent years as Catholic facilities have moved aggressively
to merge with secular hospitals
and reports have surfaced about the challenges – some say
contortions — that doctors and nurses have sometimes had to face to comply
with church teachings on abortion, birth control, and end-of-life care while fulfilling
their duty to patients.
Catholic
hospitals now account for about 16 percent of hospital beds in the U.S. And in eight states —
including Washington, Oregon, Iowa, and Missouri — they control more than 30 percent of beds. Ten of the 25 largest
health-care networks in the country are Catholic-sponsored.
The
Means case touched a nerve because it seemed to bring together many of the
issues that have worried women’s advocates the most. Indeed, if the allegations
are true, what happened at Mercy Health Partners was even worse than has been
reported at the time of the initial filing of the lawsuit.
According
to the suit, Means’ alleged mistreatment came to light in late 2012 or early
2013 when an unidentified researcher working on a federally funded project at
Mercy uncovered what she said were not one, but five instances in which doctors there failed to terminate the
pregnancies of women who were clearly miscarrying.
When
the researcher asked hospital officials to explain, they allegedly told her
that they were following the Ethical and Religious Directives for Catholic
Health Care, or ERDs
— guidelines that govern medical treatment at every Catholic hospital and
health system in the United States.
The
ERDS — which are issued and regularly updated by the bishops council —
ban abortion and limit many other medical options, including sterilization and
birth control, and apply to patients and medical staff no matter what their
religion.
Their
impact, the advocates say, is greatest in places like Muskegon, where the only
hospitals in the county are Catholic. Doctors who fail to comply with the ERDs risk
losing their admitting privileges; other employees who similarly fail to abide
by the ERDs face losing their jobs. (In Colorado recently, a cardiologist at a Catholic facility was
reprimanded for merely
mentioning abortion as a treatment option for a woman for whom pregnancy could
have been deadly.)
“The
bishops aren’t doctors, and yet they issue rules that tie doctors’ hands,
preventing them from giving their patients full information about their health
care options and, in some cases, preventing them from providing medically
appropriate care,” the ACLU’s deputy legal director, Louise Melling,
blogged on
the organization’s website in December. “That’s not right.”
But
in motions filed over the past two months, the bishops and their co-defendants —
three officials at an entity called Catholic Health Ministries
created to “oversee the healing ministry and Catholic identity” of Mercy and
other hospitals in its network — have
argued that the ACLU lawsuit has a series of potentially fatal flaws.
Perhaps
the most basic involves the statute of limitations. The defense lawyers point
out that Means had her miscarriage in December 2010, almost exactly three years
before filing suit. The Michigan deadline for medical malpractice
claims is two years.
The
statute of limitations for negligence, on the other hand, is three years. Negligence
is the cause of action that forms the basis of the ACLU’s complaint — something
the attorneys for the bishops have signaled they plan to challenge. They
describe the lawsuit as “a poorly disguised medical malpractice action” and “a
frivolous and totally fabricated cause of action.”
The
lawyers also question the ACLU’s choice of venue. Instead of bringing the case
in federal court in Western Michigan, where Means lives and Mercy Health
Partners is located, the organization filed suit in the Eastern District, where
Mercy’s owner, Trinity Health, is based. But Trinity isn’t a defendant. (Though the
court filings don’t say so, the judges in the Western District are mainly Republicans, while the Eastern District — based in Detroit — is
dominated by Clinton and Obama appointees.)
In
their filings, the bishops conference doesn’t address
whether Means’ allegations are true. Instead, they argue that the ACLU has fundamentally
misread the ERDs. Despite the ban on abortion, the directives do not “preclude
anyone from being given appropriate medical care,” Linda Hunt, a USCCB
executive, said in an affidavit. She noted that the ERDs “specifically require
‘free and informed consent…. for medical treatments and procedures’” including
“risks, side-effects, consequences and costs; and any reasonable and morally
legitimate alternatives.”
Hunt
reiterated, “There is no directive that requires or allows a pregnant woman to
be harmed in any way.”
The
bishops and their lawyers, to date, have not specially addressed the care Means
received.
Means,
in an interview in January, described her version of events.
“They
sent me home with no answers. I was begging, ‘You guys have to help me. I am in
a lot of pain. I can’t keep going home like this. Please help me.’
“After
we were sent home the second time, I knew the baby wasn’t going to make it. I
felt alone. I can’t even put into words. I felt confused, in pain and
devastated.”
The arguments made so far by the bishops track what some legal scholars have been saying
about the case since it was filed.
“I
don’t doubt that if [Means] sued the hospital or the doctor, this would be
plain, vanilla medical malpractice,” Robin Fretwell
Wilson, a law professor at the University of Illinois, told the
American Prospect in December. “But they’re not suing the
doctor, the hospital, the local bishops, the board of trustees — you’re many
layers removed from the person who really should owe this woman a remedy if
everything in the complaint is taken as accurate.”
Richmond
School of Law professor Kevin Walsh
first noted the statute of limitations problem in a post on
the Catholic legal blog Mirror of Justice. “If one assumes for purposes of
analysis that medical malpractice was committed, then why not sue for medical
malpractice? Why repackage a potentially winning claim of medical malpractice
into a seemingly losing claim of theological malpractice?”
Another
explanation, Walsh wrote, “may be that the ACLU’s goal
in the case is not to obtain personal redress for their client but instead to
place a dark cloud over Catholic healthcare more generally. That is not only
plausible but probable.”
But
in an interview last December, the ACLU’s Melling
disputed that.
“First
and foremost we care about Tamesha Means,” she said.
“We are filing this suit on behalf of a woman who was wronged. She wasn’t
provided adequate care and as a result, she suffered unnecessarily.”
Melling, though, also was clear that her organization was
trying to make a larger point.
“We
know Tamesha Means wasn’t the only person in the
country who was denied prompt and appropriate care. The bishops set the
standards for health care in Catholic hospitals, and those standards can’t be
putting patients at risk.”
