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. AY wrote: “I think from what I’ve read that Jesus would be a liberal…”

      Jesus and his apostles were all among the most liberal of men IMO.

  1. DavidM,

    I’ve met folks like you before…. That’s why I’m glad I’m in the position I am in in this life…. I’m educated… Somewhat…. I have lots more things than others… But not as much as some…. But, I’ve been gifted of many things in life…. Many years ago I thought had all of the answers….. It was my way or the highway… Or I’d make certain you knew what I thought…. I have learned a great deal from my experiences…. Not all ever have had to view life as I have been forced to see its ironic twists….

    I will say one thing will be certain…. We will all know a judgment day someday…. We don’t know when, where, how or why it has to happen at the time it does…. But it does….

    One thing I will leave you with is Mr. lee Atwaters apology to Michael Dukaksis on Hs death bed….. He asked for Michael’s forgiveness and apologized for how he treated him…. Not everybody gets this opportunity….. I hope you do….. You are not a god, a judge or any expert in the medical field that I am aware of…. If you have credentials that make you an expert on being able to cast judgment on another human… Please provide it…. Can you float…. Can you do what is called bilocation….. Have you turned water into wine….. What miracles have you made happen….. Thank you….

  2. David, IMO, your judgment is regressive, authoritarian, paternalistic, and abhorrent. That’s fine for your own family, more power to you, but you have no authority over autonomous human beings not related to you. Your ideas of what is right and wrong is not the gold standard by a long shot. More than one half of this country’s population disagree with you.

    People with notions such as yours should just keep on spouting this stuff, it will help Democrats win Presidential elections for years to come.

    1. Annie wrote: “your judgment is regressive, authoritarian, paternalistic, and abhorrent. That’s fine for your own family, more power to you, but you have no authority over autonomous human beings not related to you.”

      Lighten up please, lady. My wife and family have a very different judgment of me than you do. Have no fear. I do not seek to have any authority over you or anybody else. I am only sharing my thoughts in response to someone who asked for them. There is no need for you to get so defensive.

  3. davidm,

    If people have sex for pleasure you feel that’s immoral?

    You think it’s immoral for people to have sex for pleasure? You think humans should only have sex in order to procreate? I can imagine what your Utopia might be like: It would be a place that soon became overpopulated or else it would be inhabited by lots of horny folks walking around with lust in their hearts!

    1. Elaine M wrote: “If people have sex for pleasure you feel that’s immoral?”

      No, you missed the point. Pleasure is a built-in natural aspect of sex. What is immoral is blocking another built-in natural aspect of sex in order to make sex ONLY about pleasure. The perversion of natural function is immoral. A person cutting himself is immoral because it is contrary to natural law.

  4. Bron, now you are just phoning it in with conservative (yes conservative) talking points. What could be more controlling than forcing a woman to give birth? Ever read “The Handmaid’s Tale”? The problem with libertarians is that they live in lala land and slip between liberalism and conservatism when the it gets hot in either area. Some libertarians are on the surface libertarians and wear the old tired cloak of conservatism underneath.

  5. Davidm,

    Please read Mike Appletons remarks yesterday about the ultimate goal of the religious conservatives….. It’s not about pularity, it’s singular purpose it to be the one and dominate religiosity of the States of America.

    If it was not for the desire of dominance, there would be no need to try and regulate what others do…..

    1. AY wrote: “Please read Mike Appletons remarks yesterday about the ultimate goal of the religious conservatives….. It’s not about pularity, it’s singular purpose it to be the one and dominate religiosity of the States of America.”

      Mike Appleton is not a religious conservative, so why do you trust his insight about the ultimate goal of religious conservatives?

      It is human nature for people to want everyone else to share their philosophy and religion. Such applies equally to religious conservatives and atheist liberals. Unfortunately, it often is mistaken for the desire to dominate others who are different.

      AY wrote: “If it was not for the desire of dominance, there would be no need to try and regulate what others do…”

      Victims often want to regulate what others do because they don’t want more victims. Someone who gets mugged wants laws against mugging. Someone who was talked into an abortion and suffered after doing it wants laws against abortion. Someone who lost everything through the seductiveness of gambling wants laws against gambling. Someone whose child died from an overdose of drugs wants laws against drug use. Someone whose child or spouse died from a drunk driver wants laws against drunk driving. There are other motivations for regulating the behavior of others besides the desire to dominate.

  6. You know Bron… I could give two shits for Obamacare….. As I think the big insurance companies bought and paid for Obama….. I went for a few years without insurance….. But today I have lifetime healthcare….. So, I am not part of the equation….. I don’t think anyone has the right to force anyone to have insurance…. I really don’t…. But the are foolish for not….. As the bankruptcy reform act of I think 2004 or there abouts forces you to make arraignments with hospitals and credit card companies…. No automatic discharge….. I think both sides are wrong……when they go to the extremes…..

  7. AY:

    “Do you think your judgment is better than the one making this type of decision?”

    That is a good point but you are probably all for Obamacare, if you are then you are a hypocrite.

    And more broadly the left is all for telling us what to do and how and when if it suits their agenda. I have always said there isnt much difference between liberals and evangelical Christians, liberals want to control our minds and evangelicals want to control our bodies. Mind and body act together, one cannot exist without the other.

  8. David,

    I don’t go left and I don’t go right…. It just amazes me that you folks that do….. Seem like you make decisions for everyone else…. I think that those that do play god…. I’ve said it’s not for me…. But as soon as I start telling folks what they can and can’t do, I am playing god…..

    Do you think your judgment is better than the one making this type of decision?

    1. AY wrote: “But as soon as I start telling folks what they can and can’t do, I am playing god…”

      So, what’s wrong with that? Every person in authority must tell someone what they can and can’t do. Every parent must set boundaries for their children, and the role of judges, legislatures, and executives is to tell people what is right and what is wrong.

      AY wrote: “Do you think your judgment is better than the one making this type of decision?”

      Yes, in many cases it is, but not in all cases.

  9. annieofwi:

    I imagine many women and men do not know the various stages of development during pregnency.

    I am all for contraception as well. But some are dangerous to women’s health. But in any event, that should be left up to the individuals involved and is not for the government to decide.

    Nor is it the governments responsibility or duty to force an employer to provide birth control or abortions if they are morally against those things or to provide them if the employer is for birth control and abortion.

    It isnt any of the governments business.

  10. Mike Appleton:

    I am perfectly fine with public executions, I think we might have less murder and fewer death sentences.

  11. 2x I tried post comment but page came back without the comment. don’t know if went into spam, used only 2 links.

  12. Lee,

    It was kind of hearting when I read it…. I am glad he stood up for his beliefs….. The 1st amendment applies to everyone….

  13. The activities of Planned Parenthood are lawful. Therefore, the portion of their work devoted to the provision of abortion services is irrelevant for any purpose other than that organization’s statistical records.

  14. leejcaroll:

    I agree with you completely. It was a black mark against the NAACP. Commitment to the rule of law admits of no exceptions.

  15. Born, since you believe that “women ought to be shown what they are killing,” it follows that you regard abortion to be a form of homicide. If that is the case, would you support legislation mandating the televising of executions?

Comments are closed.