In Health Care Suit Against Catholic Bishops, the Specter of an Early Defeat

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.”