Very Quick Case Mini-Update

Of the topics I have previously discussed, readers seemed most interested in (or shocked/angered by) the issue of hospitals apparently failing to provide women–particularly pregnant women–with adequate care or informed consent, based on the religious affiliation of the hospital. I wrote very briefly wrote about a particular instance of this here, a post in which I wrote a summary of Elizabeth Deutsch‘s excellent law review article Expanding Conscience, Shrinking Care: The Crisis in Access to Reproductive Care and the Affordable Care Act’s Nondiscrimination Mandate. What drew me to her article was that it was one of the few law review articles that I could find which references Tamesha Means’s case against the United States Conference of Catholic Bishops. I have been following the case, and hoping to write a detailed post (or series of posts) about it for this blog.

Today the Sixth Circuit issued its decision in Tamesha Means’s appeal of the district court’s dismissal of her case. The  Sixth Circuit affirmed that dismissal. I wanted to quickly share a link for anyone else who, like me, has been following this case. Here is a link to the PDF of the opinion, posted today by the Sixth Circuit Court of Appeals. I’ll write a full update when I finish reading the Sixth Circuit’s opinion.

For more background on the case, here’s the ACLU’s website for the case, which links to some of the legal documents. You can read the complaint here and the district court’s opinion here. At this time, I haven’t found public links to the United States Conference of Catholic Bishops’ answer or motions or briefs or any other legal documents filed on their behalf. If I find them, I’ll provide them, because I do not want to present only one-sided coverage of any topic.

In the meantime, readers, I would love to hear your thoughts, opinions, and questions!

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Posted in Case Update, Links and Media, Religious Freedom, Reproductive Rights
8 comments on “Very Quick Case Mini-Update
  1. everoman says:

    Curious what your thoughts are regarding this latest finding by the court. We’re you disappointed? I found the final result interesting and wonder what Ms. Mears and her attorney will do as a result of this latest ruling.

    Like

    • sarahekelsey says:

      My thoughts are sort of a mess of confusion. The Sixth Circuit opinion reads very logically and sensibly, suggesting that maybe there wasn’t, at the time this was filed, a path in the law to address this sort of harm. Sometimes a thing is bad, but there’s no path in the law to fix it at the time (to put it overly simply.) But I’ve also learned that when a judicial opinion seems TOO obvious, to look again. If it was that obvious, the litigants wouldn’t have gotten that far — why keep fighting? What I’m finding in my research is different people/groups characterizing the facts of this case in wildly different ways — sometimes as sets of facts that can’t both be true. That complicates things. What I really want to know is the USCCB’s perspective on the following: IF these facts are 100% true, even if, despite the Ethical Directives having provisions for terminating a pregnancy to save the mother’s life, hospitals are still erring on the side of not terminating a pregnancy and risking the mother’s health, what should happen? Is the issue the difference between “risk to health” or a more clear “risk of life and death”?

      This makes me wish I understood health law a lot more. As a baseline, my opinion is that it’s awful that women everywhere don’t have the ability to go to a hospital and know for sure that they will get information and care that meets the standard, based on the hospital’s religious/moral values that might not match up with the mother’s. I think it’s totally inappropriate to call the hospital’s values immoral. I’m imagining the values as the following: to think of an unborn life as a separate life, and therefore, the moral thing to do is not deprive that life of another few hours of living. I imagine that to someone with that worldview, a person shouldn’t intervene in the choice of whose life/health is more important than the other — that’s for God/the Universe/whatever. I definitely don’t think an individual person who feels that way should be forced to participate in what they consider an abortion.

      But another set of moral values I can imagine is that putting the mother’s life, or even health, at risk, for an unborn life (I’m not writing “baby” or “fetus” on purpose, as those words are charged and can indicate that I’m on a “side”), particularly one with no chance of surviving to birth, is immoral! Some would say if the mother dies, that choice was murder. (I’ll look for the exact news story, but in another country, this happened, and the word “murder” was used, if I’m remembering correctly.)

      This is where my opinion ends — that I imagine these possible opinions, that I think no unwilling individual should be forced to participate in terminating a pregnancy, BUT I also think that every woman who goes to the hospital should get all of the information about her condition, risks to her health, risks and survival chances of her unborn child, and then be able to choose if she’s willing to take any risks to her health, and have access to the appropriate care. But who creates that reality? The government? Is it appropriate for the government to force religious organizations to do something like that? But then again, if you’re getting into the business of hospitals, maybe the law can force you to save mothers’ lives. With every sentence I write, I imagine a question or fact I don’t know enough about, that could change my analysis.

      What I’m finding most of all is different “sides” characterizing the facts differently. Most of all, I want to know the UCSSB’s position IF the facts Tamesha Means and her attorneys alleged are 100% true. If it’s true that hospitals are putting mothers’ health at risk, despite the Ethical Directives’ provisions for saving a mother’s life, even if it means terminating a pregnancy, what does the UCSSB think should happen? So far, all I’m finding are people characterizing this as a war on Christianity, with mean liberals trying to FORCE Catholics to perform abortions or “counsel” abortions (I think this is how they’re characterizing what some are calling “informed consent.”) But if we’re talking about the same set of facts, the UCSSB’s Directive 47 (allowing terminating a pregnancy to save the mother) also FORCES Catholics to perform abortions. I want everyone to get on the same page, talk about the same facts (even if we make it a hypothetical) and figure out where there’s common ground, and work out a solution. That solution could be that hospitals must allow willing individuals to participate in whatever is necessary for a mother’s life/health. That solution could be that the hospitals must provide full information, informed consent, so the mother can choose to go to a different hospital or not. Some feel that even this is too much of an intrusion, because it’s abortion referral or counseling.

      I just keep thinking in circles and spirals, with questions, questions, questions. Because I haven’t found any other blog doing so, I’m going to write a summary of what the Sixth Circuit opinion actually says, and a summary of different reactions or reports resulting from that. To write a full analysis, to answer the question of what I think about the ruling, I need to go back and read or re-read eeeeeeeeeeverything: the complaint, the various motions and briefs, and the amicus brief filed by medical professionals; peruse the Ethical Directives and any other primary sources; and finally, listen to the Sixth Circuit oral argument in the case.

      I am curious what you think, too. Thank you for commenting!

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      • everoman says:

        I would live to view the written emergency room and discharge summaries. I have had patients file complaints about their care, then read their record and discharge summary and it was completely different. I also wondered if there was a planned parenthood or women’s clinic near her or if this is a rural area with no other facility available. I also wonder if the hospital is accredited and if so and if the facts are true, a complaint could be filed through their site. Also each state monitors patient care and complaints regarding quality of care can be filed through the state. I also wondered if there was insurance involved. Insurance companies can look into quality of care and can refuse to submit payment. Last, I questioned why the three year lapse in time. I’d she attempt to file a complaint prior and a care review denied her claims or was she simply unclear as to what or how she should follow up on her care. All that aside, the ruling seemed clear and logical from a layman’s perspective. (mine)

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  2. sarahekelsey says:

    Thank you for replying!

    I have answers for some of those questions. It was a rural area. The three year lapse is because it took that long for her to find out what happened – that she wasn’t given all of the information, for example. She found out as a result of a public health investigation into the hospital. I have to look for the source where I read this, but I think they found other, similar cases – this wasn’t an isolated incident.
    This is from the Sixth Circuit opinion, referencing the investigation:

    “Two years later, a public health educator working on a federally funded public health
    surveillance project on infant and fetal mortality discovered and inquired into Means’s case.
    Mercy Health’s Vice President of Mission Services Joseph O’Meara explained the hospital’s
    inaction by stating that the Directives prohibited the hospital from inducing labor or taking
    similar action in Means’s situation. Since the statute of limitations had run out on any medical
    malpractice claim Means may have had, she sued the Catholic entities responsible for the
    Directives on a theory of ordinary negligence, alleging that the Directives caused Mercy Health’s harmful inaction.”

    I also think it’s helpful to understand why this suit was filed the way it was – that the medical malpractice statute of limitations foreclosed that option, even though it sounds like she had no way of knowing what happened until someone else did an investigation. That was something I didn’t understand until I read that part of the opinion, above.

    I think (in my pre-coffee Saturday morning state) this got dismissed before discovery – because the judge is saying even if everything they’re saying is true, even if the hospital records were to confirm the allegations of the complaint, there’s still no claim or jurisdiction, no legal way to proceed to recovery, based on these facts. But maybe the emergency room and discharge summaries were available to the investigator? I’ll be sharing any links and resource I come across – because my goal is to inform people, not only show them what supports my opinion. I’m continually frustrated, when I research legal issues, by incomplete or imprecise reporting, so I’m trying to give people as many pieces of information as possible.

    On my reading list, that you might find interesting, is this report https://www.aclu.org/report/report-health-care-denied?redirect=report/health-care-denied. I haven’t read it yet, so I have no opinions about it!

    Also, on my “to research more and then write about” list is a news story I think is similar to this case: http://www.npr.org/templates/story/story.php?storyId=126985072 I’ve been following this incident on and off since I heard about it in 2012, but this NPR story mentions two important things I haven’t seen in other coverage:
    1) The patient was too ill to be moved to another hospital
    and
    2) The hospital thought they were covered by Directive 47, which “allows, in some circumstance, procedures that could kill the fetus to save the mother.”
    But bishops disagreed with their good faith reliance on Directive 47– lots of people were excommunicated and the hospital lost its Catholic affiliation. (Here’s a later news story detailing that: https://www.theguardian.com/world/2010/dec/22/us-catholic-bishop-hospital-abortion)

    I definitely don’t want to take two incidents from more than five years ago to make a conclusion about USCCB or anyone else. But I haven’t found any clear statements on what USCCB’s position would be if everyone agreed on the facts; even in the Phoenix situation, they disagree about the facts. The medical professionals at St. Joseph’s said she had a near 100% chance of not surviving and couldn’t be moved to another hospital; the bishops say that they could have treated the heart condition, and that Directive 47 didn’t apply. So when does Directive 47 apply? This is not a rhetorical question; I sincerely want to learn.

    Thanks again for commenting. It’s so much easier to write in this blog when I have readers’ feedback to work from, instead of staring at a blank page.

    EDITED: I accidentally wrote “the bishops say that they couldn’t have treated the heart condition”; I mean “could”.

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    • sarahekelsey says:

      Here’s another news story that might answer some of your questions:https://www.theguardian.com/us-news/2016/feb/18/michigan-catholic-hospital-women-miscarriage-abortion-mercy-health-partners?CMP=share_btn_tw
      It’s about the investigation and report. It found, between 2009 and 2010, five women who were “forced to undergo dangerous miscarriages” based on the hospital’s interpretation of the UCSSB directives.
      One question it answers – the secular hospital was 45 minutes away. I’m seeing conflicting information on whether women knew they had the option to go there. That Guardian story reports a doctor from the hospital saying that “doctors should have given the woman the option of being transferred to a secular hospital, 45 minutes away, where doctors could induce labor.” But I’ve also read that the directives, or how hospitals interpret the directives, ban them from providing that information, because it’s referring or counseling or facilitating an abortion.

      Like

    • everoman says:

      I really like reading your response and hate the stance the hospital took. I just cannot fathom that healthcare is still substandard in some areas of our country. I feel as strongly about that as I do about one in five children going hungry in our country. I know it is a separate issue but my feelings of angst are just as equal. Our area is a lovely community yet we have 20 to 25 children in our local elementary school who do not have enough food. Their parents earn too much to qualify for food assistance and can barely meet their day to day expenses. I volunteer with a group to feed thsee kids but multiply it nation wide and I am outraged. Sorry for the rant but maybe it will heighten the awareness of both issues. What would it really take to address both. Anyway, thank you for sharing your insight.

      Liked by 1 person

  3. […] about the case with a commenter on the previous post (which you read – and participate in! – here), but the reading I’d like to do would take more days…on top of the ten that have already […]

    Liked by 1 person

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Constitutional law (mostly civil rights) for everyone! The author of this blog attempts to make legal issues, cases, and news stories with a consititutional connection accessible for any audience. The goal is to provide information, analysis, and an opportunity for conversation. Please feel free to ask questions or respond in the comments or via e-mail. Dialogue, disagreement, and most of all decorum are highly encouraged.
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Information on this blog is provided for educational purposes only and is not legal advice. Reading or interacting with this blog does not form an attorney-client relationship with the author. This blog should not be used as a substitute for competent legal advice from a licensed attorney.
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