The ACLU is suing hospitals that delay helping women in life-threatening situations.
WASHINGTON — Eight years ago, Dr. Lori Freedman began a study of how the medical practices of obstetrician-gynecologists are affected by abortion training they received during their residencies — and she stumbled on an unexpected finding.
Freedman’s study, “Where there’s a heartbeat,” found that OB-GYNs working in Catholic-owned hospitals were sometimes forced to delay inducing labor for women whose pregnancies threatened their health. Their hospitals’ ethics committees either insisted they wait for the fetal heartbeat to cease before terminating the pregnancy or that they transfer the patient to another facility. They did so because of how they interpreted the church’s “Ethical and Religious Directives for Catholic Health Care Services,” which ban abortion but allow operations that “have as their direct purpose the cure of a proportionately serious pathological condition of a pregnant woman … when they cannot be safely postponed until the unborn child is viable.”
The problem, as Freedman saw it, is that in practice, Catholic hospitals have differing interpretations of when they are allowed to terminate pregnancies. OB-GYNs told her they had to wait until it looked like their patient was going to die before ending her pregnancy. One doctor at a secular hospital reported accepting a patient transferred from a Catholic hospital who was already septic — i.e., dangerously infected — and hemorrhaging blood when she arrived.
The number of U.S. hospitals with a Catholic affiliation has increased by 22 percent since 2001.
“To me, miscarriage management and abortion were completely separate things, but when I learned about this particular set of doctrines I learned how the interpretations could vary,” Freedman told The Huffington Post.
Cases like this are gaining prominence because of a multi-pronged legal and legislative campaign by the American Civil Liberties Union and other groups concerned about the increasing prevalence of Catholic hospitals nationwide. A report released in May from the ACLU and MergerWatch found that one out of every six of the country’s acute care hospital beds is in a facility with ties to the Catholic church. Mergers and acquisitions in the health care industry mean the number of hospitals with a Catholic affiliation has increased by 22 percent since 2001, to 15 percent of the nation’s hospitals.
[Related on HuffPost: Want Your Tubes Tied At A Catholic Hospital? Try Threatening To Sue.]
Advocates took note of Freedman’s research. As early as the 1970s and as recently as this year, the ACLU had sued Catholic hospitals that refused to tie the tubes of patients giving birth at their institutions because of the church’s policy against sterilization — but the potentially widespread nature of the miscarriage management issue surprised the group.
“We all read [Freedman’s study] and said we needed to investigate the problem more thoroughly to see what we could do from a legal and advocacy perspective,” said Brigitte Amiri, a senior staff attorney with the ACLU’s Reproductive Freedom project.
Taking the issue to court
A turning point for the ACLU was learning about Tamesha Means and the miscarriage she experienced in 2010 at Mercy Health Partners, a Catholic hospital in Michigan. At 18 weeks pregnant, Means arrived at the hospital after her water broke, but staff there sent her home. When she returned after feeling “severe pain,” they again sent her home, even though she was at risk of infection. Her lawsuit claims she was never informed that her fetus would not survive, though her doctors knew that ending the pregnancy was the safest option and the standard of care.
The Guardian reported in February that four other women with pre-viability pregnancies who were showing signs of infection underwent dangerous miscarriages at the Michigan hospital in 2009 and 2010, without being informed they could be transferred to another institution that would have helped them.
Three years later, the ACLU filed an unprecedented suit against the United States Conference of Catholic Bishops, which wrote the ethical and religious directives, for negligence and providing substandard care. A district court dismissed the suit last year, so they appealed to the 6th Circuit Court of Appeals. Oral argument in that case is scheduled for June 17.
A woman holds a poster during a vigil in November 2012 in Dublin in memory of Savita Halappanavar, who died of septicemia following a miscarriage 17 weeks into her pregnancy. In the U.S., civil rights groups are suing Catholic hospitals over similar cases in which they did not intervene when women were having dangerous miscarriages.
A flurry of other lawsuits filed by the national ACLU and its state affiliates allege that various Catholic hospitals are failing to provide appropriate miscarriage management for patients experiencing pregnancy-related complications. In October, the ACLU sued Trinity Health Corporation, one of the nation’s largest Catholic health care systems. The group alleges the network has repeatedly violated the Emergency Medical Treatment and Active Labor Act, which requires hospitals to provide stabilizing treatment to patients. A judge dismissed that case in April; the ACLU has asked the judge to reconsider his decision.
Elizabeth Sepper, a health law scholar at Washington University in St. Louis, told HuffPost that while “the legal framework is not friendly to plaintiffs in this area,” she believes reproductive health care advocates could have a conversation about challenging the conscience clauses passed by states that say doctors or institutions can refuse to provide abortions and sterilizations and simultaneously be protected from lawsuits if their patient suffers harm as a result.
“In many states, if a Catholic hospital were to kill a woman because they did not provide her with proper miscarriage management, they would not face liability,” Sepper noted. “It’s one thing to say, in order to protect one’s religious beliefs and convictions about when life begins, we’re going to allow you to step away from a situation, to not perform an abortion in most situations. But to say that you could actually kill someone or seriously injure them and face no consequences for that seems a step too far.”
There isn’t much of an incentive for staff at Catholic hospitals to challenge the scope of the church’s directives, since doing so could result in being punished. A nun who was an administrator at a Catholic hospital in Arizona was excommunicated in 2010 after she approved an abortion for a patient who probably would have died if her pregnancy had continued.
‘Stories beget stories’
One hurdle for groups hoping to sue more Catholic hospitals is that it’s difficult to find former patients who had mismanaged miscarriages, because they may not have realized anything was amiss with the care they received.
“We don’t know whether visibility of the lawsuits will improve practice because it scares people, or if the visibility of the lawsuits will help people who have had terrible care come out of the closet,” Freedman said. “Most doctors don’t want a woman to have a bad outcome, so they’ll try very hard to try some sort of workaround. But then you have the issue of the ethics of workarounds — is it ethical that the only way to get her needs met is to fudge things? That’s not usually how we like to practice medicine.”
To raise awareness about the management of miscarriages at Catholic hospitals, the ACLU filed a Freedom of Information Act lawsuit against the Centers for Medicare and Medicaid Services in May to obtain complaints from women refused emergency treatment from hospitals with a religious affiliation. The group hopes the lawsuit will inspire the federal government to undertake its own investigation of gaps in reproductive health care at hospitals with religious ties.
“We have found that stories beget stories,” Amiri said. “Our goal is to raise awareness, get folks to come forward, to contact us, to be strategic about litigation and advocacy to try to change things.”
Various ACLU state affiliates are also pushing legislation that would ensure patients are given all the information they need about their health condition, rather than denied information about their pregnancy because of their hospital’s religious beliefs. The Democrat-controlled Illinois state House passed just such a law in May.
“We’re seeing a lot more efforts to use the courts, the administrative process and the legislative process in tandem to create public awareness of this problem,” Sepper said.
Next step: More research
Freedman said she tried to get funding from a foundation eight years ago for a study comparing health care at religious and non-religious institutions. But the foundation told her they were not interested in “political activism work.”
“They treated me like I wanted to do some activist intervention,” she recalled. “This foundation couldn’t envision this as legitimate research.”
Now, she and other researchers have formed a consortium to encourage others to research the intersection of reproductive health care and religiously affiliated hospitals, or at least include a question about the nature of the hospital in otherwise unrelated studies to measure the impact of its affiliations on the patient experience. They held their first meeting last fall.
“We already have enough research to know that it’s an ethical problem, an ethical problem that wouldn’t be tolerated in other areas of medicine,” she said.