Eight Nine Ten days ago, I promised readers “a full update when I finish reading” the Sixth Circuit Court of Appeals’s dismissal of Tamesha Means’s case against the United States Conference of Catholic Bishops (USCCB) and three individuals, the Catholic Health Ministries (CHM) Defendants for short. But simply reading (and re-reading) the Sixth Circuit opinion didn’t prepare me to write a full update; it left me with more questions. Questions lead to more research; research yields conflicting facts and more questions. The days add up.
One question: Why have I chosen to write about this case or issue? In particular — why have I chosen to write about this case on constitutional law blog, when the two issues in the Sixth Circuit’s dismissal are personal jurisdiction and torts? Reasons include that 1) I see a connection to this case and rights to life, bodily integrity, speech, and religious freedom, even if there’s no state actor in this particular case to bring the Constitution into it; 2) when I think of possible solutions, such as legislation prohibiting refusing emergency treatment to women, I imagine a Constitutional, religious freedom and free speech challenge as a consequence; and 3) since 2012, I have been following cases of hospitals denying care to women based on the hospital’s religious affiliation, and I want this issue to get more attention. This is an issue I was hoping I’d leave law school knowing more about, but I have more questions now than ever before. I want these issues to get more coverage, and I want people with more knowledge than me to help me understand the legal and ethical issues more.
Reactions to the Sixth Circuit’s Ruling
Reactions to the opinion have varied. LifeNews.com described the ruling as “ACLU Loses Attempt to Force Catholic Hospital to Refer Patients for Abortions,” and Christian Daily described the dismissal as a declaration that “Catholic hospital cannot be forced to refer women for abortions.” In the ACLU’s comment on the ruling, Brigitte Amiri, senior staff attorney with the ACLU’s Reproductive Freedom Project, stated, “the court’s decision today in no way sanctions turning away women based on a hospital’s religiously based policies.”
While I don’t read the ruling as a referendum on legal challenges to religious refusals to provide patients with appropriate care and information, I haven’t formed a solid opinion yet either. I see it as a ruling on procedural grounds with which I’m not sure if I agree or not. I had a great discussion 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 elapsed…so for this weekend, here’s just a summary of what the Sixth Circuit said.
Summary of the Sixth Circuit’s Opinion
Summaries that have come out since the opinion was issued on September 8th say things like, the case was dismissed on jurisdictional grounds, and then include a block quote from a section of the opinion that had nothing to do with jurisdiction, and a quote from the district court opinion (not the same thing as the Sixth Circuit opinion!) about ecclesiastical abstention (which is an interesting topic for another post).
The two sources that summarize the opinion more precisely are this post from Religion Clause and the ACLU’s comment. These sources note that the case against one defendant was dismissed on jurisdictional grounds, and the case against the other defendants was dismissed based on Tamesha Means’s lack of “present physical injury” at the time she filed the case.
This is summed up accurately and concisely by the ACLU’s comment: “The court ruled that the United States Conference of Catholic Bishops could not be sued in Michigan.” I will attempt to provide some background in case you’re asking, “Why?”
The district court found, and the Sixth Circuit agreed, that a federal court in Michigan doesn’t have personal jurisdiction over USCCB, a nonprofit organization incorporated in D.C. I searched the Internet for a concise, clear breakdown of personal jurisdiction for the layperson, and found none. Even Wikipedia let me down with an entry full of jargon. So I turned to my 1L year Civil Procedure outline and wrote this very brief, extremely simplified summary.
Personal jurisdiction is the power a court needs for someone to sue you in that court. The idea is that it’s not fair for someone to be dragged into court and subject to the laws of a state to which they have no connection. Words you’ll see in discussions of personal jurisdiction include, “minimum contacts” with the “forum state” (the state where the court is), “purposeful availment” of that state and its laws, fairness, and reasonableness. This gets very complicated when a person or entity does something on the Internet, or when the facts that led the lawsuit are connected in some way to the actions of a corporate entity (including nonprofits like USCCB). There are a looooooooooot of cases about personal jurisdiction that involve corporations. The case International Shoe v. Washington is one, illustrating one way that an out-of-state corporation can have “minimum contacts” with the forum state such that it can be sued there.
You can read the Sixth Circuit’s full analysis of USCCB’s actions and how they were not sufficient to allow USCCB to be sued in Michigan, on pages 6–10 of the PDF version of the opinion.The USCCB promulgated the Ethical and Religious Directives for Catholic Health Care Services, with the intent that Catholic hospitals adopt them. The Sixth Circuit held that this wasn’t sufficient for them to be sued in a court in a state in which a hospital had adopted the Directives. Judge Batchelder described the connection as “attenuated,” writing:
USCCB’s action of publishing the Directives does not “create a substantial connection” between USCCB and Michigan. Michigan—like every state—does have Catholic hospitals, and USCCB does intend the Directives to be implemented by all Catholic healthcare institutions. USCCB may even have known that Trinity Health is a Catholic hospital network operating in Michigan. But this is not a “substantial connection” such that USCCB would reasonably expect to be haled into court in the state of Michigan.
In summary, even if the United States Conference of Catholic Bishops intended that the Directives be adopted in all fifty of the United States in their name, promulgating those Directives isn’t enough contact with a state to create personal jurisdiction.
Interestingly, the district court’s analysis of this question included a section about corporate entities and parents and subsidiaries. That analysis, dealing with for-profit corporations, felt somehow not completely analogous to relationships among values-based organizations. I’m no expert on this topic, and it makes me want to see what case law or scholarship on this topic exists.
Tort Claim: Ordinary Negligence
The claim against the other defendants, three individuals abbreviated as the “CHM Defendants”, was dismissed not on jurisdictional grounds but because the court found that, even if all of the facts alleged were true, the law of ordinary negligence didn’t provide a path for her to seek relief from the CHM defendants. Ordinary negligence is another first-year law school topic – torts! To recover, a plaintiff has to show that the defendant 1) had a duty to the plaintiff (a thing they were supposed to do, or not do); 2) which the defendant breached (by doing what they weren’t supposed to do or not doing what they were supposed to do); 3) which caused 4) the plaintiff’s injury.
The Sixth Circuit classified the duty as “a duty under Michigan law on the part of a religious organization to a specific patient to adopt ethical directives that do not contradict the medical standard of care.” The court declined to say “[w]hether such a duty exists,” because if the CHM Defendants breached that duty by adopting the USCCB’s Ethical and Religious Directives, that didn’t necessarily cause Tamesha Means’s injuries. Most importantly, for purposes of dismissing the case, the Sixth Circuit went on to say that those injuries weren’t recognized by Michigan tort law, as they weren’t a “present physical injury.” A widely quoted passage from the opinion is:
Means alleges—and we do not doubt—that she suffered physical and mental pain, emotional injuries, a riskier delivery, shock and emotional trauma from making funeral arrangements for her dead child, and other “discomforts and pain.” But these allegations are not sufficient to state an injury under Michigan negligence law.
But I’d like to focus on the interesting and slightly puzzling proximate cause discussion. The Sixth Circuit, on pages 11–12 of the PDF version of the opinion, looks to some of the Directives themselves. Directive 45 prohibits “the directly intended termination of pregnancy before viability or the directly intended destruction of a viable fetus.” This is “never permitted.” But the Sixth Circuit points out that under Directive 47, “even if they will result in the death of the unborn child”, “[o]perations, treatments, and medications that have as their direct purpose the cure of a proportionately serious pathological condition of a pregnant woman” which “cannot be safely postponed until the unborn child is viable” are okay. And Directive 27 requires that patients get information. I read this as the Sixth Circuit saying, “It sounds like maybe the Directives would cause a different outcome than the facts alleged, so they can’t be the legal ‘but for’ cause.”
This is where I get stuck asking questions. When does Directive 47 apply? Or Directive 27, for that matter? The facts alleged in the complaint aren’t the only report of similar occurrences; other reports exist.
As always, I’d love to hear what you think! Comment below, or if you would prefer, e-mail me directly.