The Means Case: Medical Ethics and the USCCB

By Mike Appleton, Weekend Contributor

“In this case, a young woman in a crisis situation was put at risk because religious directives were allowed to interfere with her medical care. Patients should not be forced to suffer because of a hospital’s religious affiliation.”

-Kary Moss, executive director, ACLU of Michigan (quoted in the Detroit Free Press, December 2, 2013)

“The Church holds that all human life, both before and after birth, has inherent dignity, and that health care providers have the corresponding duty to respect the dignity of all their patients. This lawsuit argues that it is legally ‘negligent’ for the Catholic bishops to proclaim this core teaching of our faith. Thus, the suit urges the government to punish that proclamation with civil liability, a clear violation of the First Amendment.”

Archbishop Joseph Kurtz, president, U.S. Conference of Catholic Bishops (quoted in the National Catholic Register, December 7, 2013)

Tamesha Means was only 18 weeks pregnant when her water broke. A friend rushed her to the emergency room at Mercy Health Partners in Muskegon, Michigan. She was examined and sent home with instructions to follow up with her regular doctor at her next scheduled appointment. The following morning she returned to the hospital, bleeding and having painful contractions. She was given pain medication and again sent home. That very night she returned for the third time, in great pain and with an elevated temperature, suggestive of an infection. As the hospital was preparing paperwork to send her home yet again, Ms. Means went into labor and delivered a baby who survived fewer than three hours. She was then informed that she would need to make funeral arrangements.

Those are a few of the allegations contained in a new lawsuit that has outraged conservatives and the Catholic hierarchy by advancing traditional negligence principles as a basis for imposing liability against a surprising group of defendants. 

The suit alleges negligence, but the targets are not the hospital, the treating physicians or the medical staff. Instead, the named defendants are the current and two former chairpersons of Catholic Health Ministries, an unincorporated association formed pursuant to Catholic canon law, and the United States Conference of Catholic Bishops, a non-profit corporation whose members include all Catholic bishops in the United States and the U.S. Virgin Islands.

Ms. Means claims that Catholic Health Ministries and the USCCB effectively prevented her from learning the truth about her medical condition, the consequent risks to her health and to the development of the fetus, and the treatment options lawfully available to her. More specifically, she asserts that she was not informed that the premature rupture of her membranes had made it virtually certain that the fetus would not survive, that continuing her pregnancy increased the risk of serious bacterial infection, possibly resulting in infertility or even death, or that inducing labor and terminating the pregnancy is a medically acceptable treatment under such circumstances. Lab tests performed following the miscarriage in fact confirmed that Ms. Means had developed acute chorioamnionitis and acute funisitis prior to going into labor.

The complaint reads much like a standard claim of medical malpractice. So why did Ms. Means elect not to sue the medical providers? And how can she link her unnecessary suffering and mental anguish to Catholic Health Ministries and the USCCB? In response to the first question, it has been suggested that the relevant statute of limitations barred a malpractice suit. But that explanation does not address the second question. And the critics have been harsh. The editors of National Review Online labeled the case “a gross violation of the First Amendment and a despicable political gambit” by the ACLU “to force Catholic organizations not only to subsidize abortions but to perform them as well.” Writing in the Washington Times, Robert Knight made the same accusation, but added, “Since only the Catholic Church bothered to build a hospital within 30 minutes of Ms. Means’ home, the ACLU contends that the facility should operate without religious principles guiding it or simply switch to the ACLU’s brand of moral relativism, where unborn children are merely options.” And in an opinion piece in the New York Post, Seth Lipsky declared, “Welcome to the next front in the war against religion.” He also suggested that perhaps the ACLU should sue the pope.

Either the critics have not taken the time to thoroughly review the lawsuit or they are merely repeating the frequently heard but nonsensical accusation that disagreement with the actions or policies of a religious organization is an assault on religious freedom. Or perhaps it’s both. In any event, the critics are wrong.

In order to understand the case, it is necessary to understand the relationships among the defendants and the impact of a document entitled Ethical and Religious Directives for Catholic Health Care Services, a set of written directives published by the USCCB and revised from time to time. Catholic Health Services is the Catholic sponsor of Trinity Health, a Catholic healthcare system that assumed the operations of Mercy Health Partners in Muskegon following a merger in 2008. Trinity’s corporate governing documents provide that it will conduct its business in accordance with Catholic teaching, including the USCCB directives.

The USCCB directives, now in their fifth edition, describe the role of the Catholic Church in its “ecclesial mission of health care” and set out 72 directives in 6 sections for making spiritual, pastoral and medical decisions in the provision of health care services. And, as one would expect, the directives are intended to be binding on Catholic hospitals. The preamble calls the directives “prescriptive.” Directive 5 should eliminate any confusion in that regard. It reads, “Catholic health care services must adopt these Directives as policy, require adherence to them within the institution as a condition for medical privileges and employment, and provide appropriate instruction regarding the Directives for administration, medical and nursing staff, and other personnel.” Directive 9 states in part, “Employees of a Catholic health care institution must respect and uphold the religious mission of the institution and adhere to these directives.” There are no exceptions for non-Catholic employees.

In sum, the USCCB has promulgated a set of rules intended to be binding on all Catholic health care facilities and all of their employees. Physicians who fail to comply risk the loss of admitting privileges. Employees who fail to comply risk the loss of employment. And the penalties have been enforced. Several years ago Sister Margaret McBride, the administrator at St. Joseph’s Hospital and Medical Center in Phoenix, was declared excommunicated by her bishop for approving an ethics committee recommendation to terminate the pregnancy of a 27-year-old mother of three diagnosed with pulmonary hypertension. She was 11 weeks pregnant when she was admitted and her death was deemed a virtual certainty should her pregnancy continue. A cardiologist at a Catholic hospital in Durango, Colorado was disciplined last year for merely discussing the possibility of an abortion with a pregnant patient who had a serious cardiovascular condition known as Marfan syndrome, a disorder which can cause an aorta to rupture.

Of special significance in the Means case are Directives 27 and 45. Directive 27 appears in a section devoted to the professional-patient relationship. That section acknowledges the critical importance of “mutual respect, trust, honesty, and appropriate confidentiality” as elements of that relationship. Directive 26 stresses the necessity of “free and informed consent” to all medical procedures. Directive 27 provides, “Free and informed consent requires that the person or the person’s surrogate receive all reasonable information about the essential nature of the proposed treatment and its benefits; its risks, side-effects, consequences, and cost; and any reasonable and morally legitimate alternatives, including no treatment at all.” The operative phrase here is “morally legitimate.”

Directive 45 is a restatement of the Catholic position on abortion. “Abortion (that is, the directly intended termination of pregnancy before viability or the directly intended destruction of a viable fetus) is never permitted. Every procedure whose sole immediate effect is the termination of pregnancy before viability is an abortion, which, in its moral context, includes the interval between conception and implantation of the embryo.” It is when Directives 27 and 45 are read together that the conflict at the heart of the Means case becomes clear. It was not the refusal of Mercy Health Partners to provide abortion services that constituted the breach of duty alleged in the complaint, but the failure to inform Ms. Means of the option of abortion. Although responsive pleadings have not been filed to date (a motion for change of venue is pending), the bishops will undoubtedly argue that the duty alleged by Ms. Means does not exist because a Catholic hospital may not be compelled to provide information to patients regarding treatment or procedures which are not “morally legitimate” or which would violate the moral principle of “material cooperation.”

Directive 27 turns the notion of freedom of religion on its ears because it means that a patient in a Catholic hospital is required to abandon his or her own religious views on the floor of the admissions office. But don’t non-Catholic patients in Catholic hospitals understand this? I doubt that the subtleties of “informed consent” are explained in the emergency room. So why not go to a different hospital? In its retort to the audacity of the ACLU, National Review Online made that point. “But it does not seem to have occurred to them that if they don’t like Catholic hospitals, they should go somewhere else.”

That observation is long on snark and impertinence, but short on reality. There are two hospitals in Muskegon County, Michigan providing acute care and emergency room services: Mercy Health Partners-Mercy Campus and Mercy Health Partners-Hackley Campus. Following its merger last year with Catholic Health East in Pennsylvania, the Trinity Health system is one of the largest in the country, with a presence in 21 states. According to the 2011 American Hospital Association Annual Survey, there were 630 Catholic hospitals in the United States. Catholic hospitals care for one out of every six patients in the United States, and account for 16.5% of Medicare discharges and 13.7% of Medicaid discharges. Moreover, perhaps as a consequence of the traditional commitment of the Church to the poor and the uninsured, 32% of Catholic hospitals are located in rural counties. For these patients, as for Ms. Means, the invitation to “go somewhere else” is meaningless.

And this brings us to the issue of proximate cause. Assuming the truth of the allegations in the complaint, it is clear that Mercy Health  Partners failed in its obligation to furnish Ms. Means all of the information to which she was lawfully entitled in order to make an informed decision concerning her own medical treatment. But what duty, if any, did the USCCB owe to her? Prof. Cathleen Kaveny, an acknowledged expert in law, moral theology and medical ethics, contends that there is no causal relationship whatsoever between the USCCB’s adoption of the directives and the injuries suffered by Ms. Means because they are enforceable only to the extent a health care facility contractually undertakes to comply with them. Under this view, the USCCB occupies a position similar to, say, the National Conference of Commissioners   on Uniform State Laws. It makes proposals, but lacks the legal authority to impose them.

I disagree with Prof. Kaveny because her opinion on the issue of proximate cause ignores the compelling moral force of the directives for any health care facility that wishes to declare itself Catholic. Moral theology is not an abstract academic enterprise; it is intended to inform real life decisions about real life problems. Furthermore, it cannot be seriously disputed that the directives have been promulgated with the expectation that they will be accepted and followed as the authoritative teaching of the American Catholic hierarchy. In issuing the directives, the bishops certainly knew that they would be formally adopted by Catholic hospitals and that the patients in those hospitals would be subjected to their requirements. Having determined to draft and publish the directives, the USCCB assumed a duty of care toward those who would forseeably be directly affected by their implementation. That duty extended to Ms. Means. (Prof. Kaveny also believes that the hospital misinterpreted the directives in the Means case, but that is a separate topic for another time).

Regardless of the outcome of the Means case, it properly focuses attention once again on taxpayer support of religious institutions in the performance of ostensibly secular functions. In Bradfield v. Roberts, 175 U.S. 291 (1899), Congress appropriated $30,000.00 for the construction of two isolation wings at Providence Hospital, a Catholic facility operated by the Sisters of Charity. The units were intended for the care of indigent patients under a contract between the hospital and the District of Columbia. The issue was whether the appropriation violated the Establishment Clause. It did not, declared the court, because the hospital was a secular corporation rather than a religious body. “It is simply a case of a secular corporation being managed by people who hold to the doctrine of the Roman Catholic Church, but who nevertheless are managing the corporation according to the law under which it exists.” 175 U.S. 298-99. The decision was unanimous.

We have come a long way since the Bradfield decision, the first case to test the constitutionality of public funding of a sectarian hospital. And the issues are now far more complicated. The Means case questions the extent to which religious doctrine may permissibly govern the performance of a secular function by a health care facility supported in part by public funds before the Establishment Clause is implicated. But perhaps we should be asking a different question. If the Catholic Church defines the operation of hospitals as “the ecclesial mission of health care,” can any public funding of those facilities satisfy the tests in Lemon v. Kurtzman, 403 U.S. 602 (1971)? Perhaps there is truth in the observation of Dr. Marie T. Hilliard of the National Catholic Bioethics Center that ” there is a need to correct the misperception that the delivery of health care is a secular endeavor.” If that is the case, the Means case could be significant indeed.

257 thoughts on “The Means Case: Medical Ethics and the USCCB”

  1. Bron,

    Fox Revives “Death Panel” Smear With Misleading Prescription Drug Claims
    February 14, 2014

    Fox attempted to revive the lie that the Affordable Care Act contains health care rationing in the form of “death panels” by pushing misleading claims about the law’s prescription drug coverage.

    On Fox’s Special Report, guest host Doug McKelway asked the show’s panel about a provision in the ACA that he claimed “is drastically limiting the availability of some drugs.” Fox contributor Stephen Hayes claimed “patients with diseases and conditions that require medication not approved by Washington bureaucrats” may “have to go without it with potentially very serious implications.” McKelway asked if the prescription drug provisions were “rationing or, as some people have said, the so-called death panels.” Fox contributor Charles Krauthammer concluded: “We’re learning how much rationing is the essence of Obamacare — the rationing of doctors, the rationing of hospitals. Here we begin to understand the rationing of drugs. Next, and in the end, will be rationing of care.”

    Fox’s description of the ACA’s prescription drug coverage is misleading, and McKelway’s “death panel” reference is outright irresponsible. The reality is that the way the ACA treats prescription drug coverage is in line with how private insurance companies have handled coverage for years.

    1. Elaine M wrote: “Fox’s description of the ACA’s prescription drug coverage is misleading, and McKelway’s “death panel” reference is outright irresponsible. The reality is that the way the ACA treats prescription drug coverage is in line with how private insurance companies have handled coverage for years.”

      I hope you don’t trust these opinions. Being inline with what has been done by insurance companies for years is not a satisfactory answer. Previously you could easily change insurance companies if you didn’t like their health care rationing process. Now with the ACA, your choices are limited.

      You might want to read an article in the Wall Street Journal from Howard Dean. He is a supporter of the ACA and no dear close friend to Republicans or Fox News. He also has a medical degree and was governor of Vermont running their health care system, and he was chairman of the Democratic National Committee. Please look at what he said about the ACA’s rationing board, the IPAB:

      “One major problem is the so-called Independent Payment Advisory Board. The IPAB is essentially a health-care rationing body. By setting doctor reimbursement rates for Medicare and determining which procedures and drugs will be covered and at what price, the IPAB will be able to stop certain treatments its members do not favor by simply setting rates to levels where no doctor or hospital will perform them.”

      “… the essential mechanism of the IPAB—has a 40-year track record of failure. … patients and physicians get aggravated because bureaucrats in either the private or public sector are making medical decisions without knowing the patients. … The medical system simply becomes more bureaucratic.”

      Sarah Palin infamously called this board a death panel and was derided for it, but when Obamacare fully rolls out in the years ahead, she will be proven to have been right. All the problems with ACA that Republicans have forecast have been coming true. Many Democrats will continue to live in denial and claim that Republicans are exaggerating or mischaracterizing the law. Quote these Democrats all you like, but that does not make what they say true.

  2. Bron,

    Mark Halperin’s Sudden Claim That Obamacare Death Panels Exist Calls Into Question His Reporting Credibility
    Rick Ungar

    Appearing yesterday on Newsmax TV’s “The Steve Malzberg Show”, Mark Halperin—Time Magazine’s senior political analyst and regular guest on MSNBC’s “Morning Joe” (except for when he is being suspended from the program for calling the President of the United States a d**k)—pronounced;

    “The Affordable Care Act contains provisions for “death panels,” which decide which critically ill patients receive care and which don’t. It’s built into the plan. It’s not like a guess or like a judgment. That’s going to be part of how costs are controlled.”

    Really, Mark?

    That is quite a pronouncement without so much as bothering to provide thinking Americans with a reference to where they can find this deeply upsetting language in the Affordable Care Act.

    I, for one, would have been most appreciative to be provided with such a citation given that I’ve read the entire law seven times and have yet to come across any provision that states how critically ill patients will—or will not—have their fate determined by their government, despite Halperin’s announcement that these death panels are the means in which health care costs are going to be controlled in the future.

  3. Bron, no one is forcing any woman to have an abortion. Are there provisions in Obamacare that stipulates an such thing in event of a genetic disease or birth defect?

  4. Bron, The empirical is let’s throw a whole bunch of stuff at it and see what works.
    Ask pain doctors and they will tell you it is gray. Often there is no discernable reason for someone’s pain, MRI;s etc show nothing,
    You write “It is grey because they do not know what to do. The pain is in your brain. The brain is, at this point, a mystery to medical professionals.” My point was David was wrong there is grey in medicine (is in other fields) You have made my point

  5. leejcarol:

    you keep making DavidM’s point for him. It is grey because they do not know what to do. The pain is in your brain. The brain is, at this point, a mystery to medical professionals.

    At some point in the future, hopefully the near future, they will be able to eliminate your pain. Gone, black and white, no more pain.

    Pain is not grey, it is very black and white. There are degrees of pain but it either hurts or it doesnt. The individual toleration to pain might be considered grey.

  6. AY:

    Cant they? If government controls health care, they control our bodies. If they find that steak and potatos are bad for you and result in higher costs, what is to prevent the government from putting a high tax on steak and potatos? Or an extra tax on fast food? It would be perfectly Constitutional to do so yet effectively eliminate steak, potatos and fast food from our diet.

    With DNA testing, which they would have access to, they could charge an additional tax on men and women who marry who each are carriers for CF. They could effectively make it so stiff a penalty as to prevent marriage. Which wouldnt be abortion of course but it would be using government force to control behavior. Taxation is not voluntary.

  7. Bron, when a doctor doesn’t know what causes the symptoms or does not know what they mean it is a grey area, trial and error until/unless something happens to work. As a person with chronic pain, and very textbook trigeminal neuralgia, my treatment has not been black and white but grey and more grey (including my last surgery being 100% experimental.) For surgeons it had better be black and white but for non surgical specialties it is often very grey.

  8. Bron, that misrepresents the ACA. It has nothing to do with making medical decisions, that is left up to, as it is now, the private insurance companies. They are the carriers, not the government. They are the ones who have and will continue to “ration” care and make medical decisions for their members by the process of certifying, or refusing to certify, medical procedures.

  9. leejcarol:

    “In medicine for instance ask a neurologist, immunologist, rheumatologist, GP if there specialties are black and white. The answer is No.”

    Of course the answer is No, because they know that there is much they dont know. So what they are telling you is they are trying things in the dark and hope some of what they know will allow them to treat you.

    You are making DavidM’s case for him.

    My son had his tonsils out about 5 years ago and he wanted to know how anethesia worked, the doctor didnt know how it affected the brain, the exact mechanism for losing consciousness was unknown.

    Much of medicine is empircal knowledge, of what has worked, compiled over centuries of practice and investigation. When a doctor knows what works to cure an illness, it is quite black and white.

  10. Bron,

    That’s an interesting proposition…. I can see where one might question that…. But I think that would not be upheld in today’s interpretation of the constitution …. You can’t force someone to get sterilized just because they might be mentally I’ll and possibly have children….. But something to ponder….

  11. Annieofwi:

    forcing a woman to carry a child to term is just as bad as forcing a woman to have an abortion.

    Obamacare makes me wonder what will happen when a woman is carrying a child with downs syndrome or cystic fibrosis, will the woman be forced to abort because the cost of caring for the child will be a burden to society?

  12. Raff,

    David does not seem to care about the ACLU except to bash it…. I’ve shown him that even a black man will represent a grand dragon of the KKK in order to preserve the construction of the constitution …. And then get fired from representing anyone in the NAACP because he stuck with substance over form….

  13. I guess my first attempt is stuck in WP limbo.
    You are mischaracterizing what the ACLU is all about and whey they are involved in this litigation. They do not sue anyone for negligence. They only deal with Constitutional issues for the sole purpose of protecting constitutional rights. Even yours.

    1. rafflaw wrote: “You are mischaracterizing what the ACLU is all about and whey they are involved in this litigation. They do not sue anyone for negligence.”

      I posted this already on this thread. The complaint they filed mentions negligence many times. The thesis statement of the complaint reads as follows:

      “Plaintiff Tamesha Means brings this negligence action against the United States Conference for Catholic Bishops and others for promulgating and implementing directives that cause pregnant women who are suffering from a miscarriage to be denied appropriate medical care, including information about their condition and treatment options.”

      Do you still believe that they do not sue anyone for negligence?

  14. David writes “I realize that liberals love to celebrate greyness, but you might consider that such is often a cloak for celebrating ignorance. It is a truism that in virtually every field, not just science, mathematics, and technology, but also economics, religion, and politics, the more knowledge and understanding a person has about a particular problem, the more black and white is the answer to the problem.” In fact not recognizing that there is more then black and white is the celebration of ignorance.
    In medicine for instance ask a neurologist, immunologist, rheumatologist, GP if there specialties are black and white. The answer is No.
    “In every field”?, In sociology, psychology, teaching, religion, politics to use some of your examples things are not black and white. That is the problem with the tea party and the right, they think they know what is right for everyone, they think they know what religion should be followed, what medical treatments are to be allowed,etc, etc, etc.
    Black and white thinking is the mentation of someone afraid of what they might find if they look outside of their diminished worldview/someone unable to use their full thinking ability.

  15. David will reframe what he writes when called on to explain the position he presented. Then he will “reframe” his answer so it can seem, in his mind, to conform with answers he doesn’t like. That way it is he who was right all along and the responder, such as Elaine, well she just misphrased what he said.
    No David, you were perfectly clear. Sex is not about pleasure, well it is, as long as it has the capacity to result in pregnancy.
    You ignored my example, of the woman with 8 miscarriages who may well die if she has another pregnancy. She is not beyond child bearing years, and how audacious of you to suggest once past child bearing age should go without the physical expression of intimacy. “You talk as if your life without sex with your gentleman friend would be meaningless. How sad. Life is about so much more than sex. There is so much more that women are capable of, especially in their elder years.” Now you can rephrase that and say well, I did not say they should not have sexual relations but that certainly is what you are sayong. The fact that your example of a young girl getting pregnant out of wedlock is another example of your inability to recognize anything outside of your small frame of reference.
    “What if she saw motherhood as a next step in life, as entering adulthood in a responsible way. What if she saw becoming pregnant as a wonderful and joyous event? What if she saw her natural ability to carry a baby to term as the greatest gift she could give to the man she loves?” What if she didn’t.? What if she grew up in an environment where she learned motherhood is a state to be avoided? What if she grew up abused and was afraid she would do the same? What if she grew up in a family with genetic illnesses such as Huntingdon;s and knew that bringing a pregnancy to term would be a horrid and unfair thing to do.
    And of course, the pregnancy is “the greatest gift” she could give to a man she loves> So it is the man who matters not what the woman has to go through (forgetting all of the times when a pregnancy is not the result of a relationship between a woman and a man she loves (And how about him, maybe the greatest gift he could give is to allow her to end a pregnancy.) but betwwen a rapist or a relative who commits incest (as a strat, no point with you in attemptinig to present other scenarios)

  16. DavidM,

    My my…. You did in fact make the statement that your wife or daughter would get what they deserved…. So far, you’ve counseled gay… You’ve taught medical school, you are a CEO of your own business….. You are not affiliated with any religion…. Etc…. But you espose views that most certainly are far right…. Arch conservative…… Then you go to spin another tale about things being most certainly black and white when you have more knowledge….. I seem to be taking the reverse stand….. On the more knowledge one possesses….. The more gray things become…. Used to I would have said…. That if you kill someone… You should suffer the consequences….. How do you feel about a 6 year old being sentenced to life in prison because he shot his drug using moms, drug dealer abuser boyfriend for hurting, beating his mom…. Is that justice in your mind? .

    Spinning by the way is a registered trademark….. Unless you’re making thread…. Then it might be useful….

  17. And they want to deny there is a War on Women? A libertarian in name only is Rand Paul. Or is he pandering to the Religious Right ?

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