The ACLU is suing U.S. Catholic bishops over anti-abortion policies that it claims endanger women’s lives. Diane and her guest discuss the legal rights of pregnant women at Roman Catholic hospitals.

Guests

  • Julie Rovner health policy correspondent, NPR; author of "Health Care Policy and Politics A-Z."
  • John Haas president, The National Catholic Bioethics Center
  • Dr. Debra Stulberg assistant professor, department of family medicine, University of Chicago family physician in private practice
  • Daniel Mach director of a program on freedom of religion and belief, ACLU.
  • Robert Destro professor of law and director of the Interdisciplinary Program in Law & Religion Columbus School of Law at The Catholic University of America.

Transcript

  • 10:06:53

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. The ACLU is suing Roman Catholic bishops over medical care for women. The organization charges that a Catholic-affiliated hospital denied appropriate care because of anti-abortion church directives. Here to discuss the case and its implications: David Mach of the ACLU, Julie Rovner of NPR, and Robert Destro of the Catholic University of America. I invite you to join us, 800-433-8850. Send us your email to drshow@wamu.org, follow us on Facebook, or send us a tweet. Welcome to all of you.

  • 10:07:42

    MS. JULIE ROVNERNice to be here, Diane.

  • 10:07:44

    MR. DANIEL MACHNice to be here.

  • 10:07:44

    DR. ROBERT DESTROThanks for having us.

  • 10:07:45

    MACHThanks for having us.

  • 10:07:46

    REHMAnd, Daniel, if I could start with you, Explain the specifics of this lawsuit.

  • 10:07:54

    MACHSo the gist of the lawsuit is that a pregnant woman's health was put at risk when she was denied basic information and timely care at a Catholic-sponsored hospital. What happened is this: A mother of three in Michigan, Tamesha Means, was 18 weeks pregnant when her water broke. She didn't have a car, so she had a friend drive her to the only hospital in her county, which was Mercy Health Partners in Muskegon, Mich.

  • 10:08:22

    MACHAnd she was in excruciating pain at the time. It turned out that she had a condition that essentially left her fetus with little or no chance of survival and left her with a great risk of infection. But because the hospital was Catholic-affiliated and governed by ethical directives promulgated by the U.S. Conference of Catholic Bishops, she didn't get important information about her condition and available treatment options.

  • 10:08:49

    MACHAnd so they didn't tell her that her fetus almost surely would not survive, that continuing her pregnancy posed serious health risks, that the safest treatment for someone in her condition was to induce labor and terminate the pregnancy, that the hospital itself wouldn't do that, and they didn't even keep her for observation. So they sent her home and essentially mislead her into thinking that all was well.

  • 10:09:13

    MACHThey told her to come back over a week later. She came back the next morning in pain and bleeding, and she was sent home once again without being told that crucial information. She returned once again that night in severe pain and with a fever. And as they were preparing to send her home yet again, she began to deliver at the hospital, and the baby died shortly thereafter. She had a breech delivery, which was extremely painful for her, and she had to be treated for several infections.

  • 10:09:45

    REHMSo explain why you decided to focus on the U.S. Roman Catholic Bishops.

  • 10:09:55

    MACHSo the reason why she did not get this basic, crucial information and receive timely care was that the hospital is governed by mandatory directives that are promulgated by the Catholic bishops and that hospitals that are Catholic-affiliated have to follow. So, surely, we want to vindicate Ms. Means' rights in this case, but we're also challenging the ability of non-medical professionals to dictate medical care. And we hope to end the practice of putting women's health at risk by denying them care and information and treatment options.

  • 10:10:33

    REHMSo you chose not to sue the hospital itself but to take it to a very different level.

  • 10:10:45

    MACHThat's right because this is a broader problem.

  • 10:10:48

    REHMJulie Rovner, has this happened in other instances with Roman Catholic-affiliated hospitals?

  • 10:10:58

    ROVNERYes. There was a very prominent case a couple of years ago in Arizona. A woman whose life was threatened ultimately did get an abortion, and the administrator/Sister who authorized the abortion was not only excommunicated but the hospital was then told by the bishop in charge that it could no longer hold itself out as a Roman Catholic hospital because they did perform this abortion and saved the woman's life.

  • 10:11:24

    ROVNERSo that got quite a bit of publicity. And this was a case where, as I mentioned, the woman did get the abortion and was then roundly punished for actually doing it. So there certainly has been this situation, but, you know, broadly, there are more and more cases like this where women go to Catholic hospitals and, in this case, may not even know. I spoke with Tamesha Means. She said she wasn't aware that this was a Catholic hospital.

  • 10:11:49

    REHMHow many Roman Catholic-affiliated hospitals are there in the country?

  • 10:11:54

    ROVNERWell, one out of every six hospital beds right now is a Catholic hospital. There are more and more mergers of hospitals in general because of the way the health system is changing. Partly that's due to the Affordable Care Act, which is giving hospitals sort of the encouragement to get larger, but that way it also predates the law. There has been this sort of general encouragement for hospitals to get larger so that they can negotiate better with insurance companies.

  • 10:12:22

    ROVNERIt's this continuing arms race between the insurance companies and the hospitals. Catholic hospitals have traditionally been fairly strong and have had a large presence. But in many states, there are a preponderance and in some states getting to be a majority of Catholic hospitals. In a lot of places Catholic hospital -- as you just heard, this was the only hospital in the county.

  • 10:12:43

    REHMI see. Bob Destro, what does it mean to be a Catholic hospital, and under what rules does that hospital operate?

  • 10:12:58

    DESTROWell, let's step back for one second and talk about this first as a malpractice case. And then I'll add that in because, just like any other hospital, Catholic hospital associations and Catholic hospitals are required to provide the highest standards of ethical care. And so, from one perspective, this is a tragic case of a miscarriage. And the question that those of us who are lawyers would ask is, why isn't this just a garden-variety malpractice case?

  • 10:13:32

    DESTROBut it's not a garden-variety malpractice case. This is an attack on an entire ethical system, you know, which sees two patients, not just one. And so even under Michigan law -- I mean, I'm amazed that they filed this case in Michigan because Michigan explicitly protects hospitals, institutions, doctors, nurses and other medical personnel from having to recommend abortions if they don't think they're ethical.

  • 10:14:01

    REHMSo, as far as you're concerned, this has nothing to do with the fact that Roman Catholic bishops have created these rules and it is under these rules that the hospitals operate. What you're saying is it comes down to the individuals involved and the fact that they carried out malpractice.

  • 10:14:32

    DESTROI'm not saying they committed malpractice. In fact, there might be a significant difference of opinion. One of the things that's interesting about this case is that they didn't sue the doctor and they didn't sue the hospital. And, of course, if they had done so, you couldn't have filed the case in federal court. So this is really a direct attack on the teaching authority of the Catholic bishops and of the Catholic healthcare system to abide by its own ethical principles. And that's what the ACLU is trying to do, is shut that off and equate it with bad medical care, and that's just not the case.

  • 10:15:09

    REHMOK. I'm going to get back to Daniel of the ACLU in just a moment. But tell me, if you will, how much money Roman Catholic hospitals receive from the Catholic Church and how much money they receive from the federal government. Is there a percentage there?

  • 10:15:35

    DESTROI would gather, I mean, this is -- I don't know the direct answer to your question. I doubt that they get any money from the Catholic Church. These are independent corporations that sit on their own bottoms. And, like every other hospital in the United States, they participate in the federal healthcare system, so they get Medicare and Medicaid money. And, as a matter of fact, federal law, and state law in most states, prohibits these hospitals from having to participate in any kind of abortion.

  • 10:16:09

    REHMAll right.

  • 10:16:09

    DESTROSo the fact that they get money is kind of irrelevant.

  • 10:16:12

    REHMJulie, can you respond to that?

  • 10:16:14

    ROVNERI don't know the exact amount of money, but I do know that the -- and I actually asked about this when on the conference call with the ACLU the other day, that the ACLU actually asked the head of Medicare and Medicaid to meet with them to talk about this issue and whether or not refusal to provide care of this sort violated the condition to participation for Medicare and particularly for Medicaid. And they said that they were not granted the meeting that they requested with the head of Medicare and Medicaid to talk about some of these issues.

  • 10:16:42

    REHMI see. So back to you, Daniel, and why this did not become strictly a malpractice case there in a Catholic hospital in Michigan.

  • 10:16:59

    MACHWell, again, this is something that we're seeking broader nationwide relief on. Most directly, we are seeking to vindicate the rights of the plaintiff in this case of the woman Ms. Means. But, beyond that, this is a problem that has occurred a fair amount across the country. Studies show that over half of the OB/GYNs working at Catholic-sponsored hospitals have run into some sort of conflicts with the directives. And the reason why this is a negligence case -- what happened here is the obvious expected consequence of the directives, which are mandatory on the hospital.

  • 10:17:42

    MACHThe directives that I said have led to similar problems around the country. And by law in this country the hospital should have informed the patient about all reasonable treatment options based on her condition, including that ending the pregnancy was an option. And we trust our doctors in this country to give medically accurate information and to abide by medical standards of care. And that's not what happened here.

  • 10:18:07

    REHMSo you believe that it is more likely that the patient would get some form of redress from a suit against the bishops of the Catholic Church than a malpractice suit against that hospital.

  • 10:18:29

    MACHWell, a basic concept of negligence law is that when there are foreseeable consequences from actions that one takes, that that person will be liable or that institution will be liable.

  • 10:18:43

    REHMAll right. Short break. We'll be right back.

  • 10:19:57

    REHMAnd in this hour, we're talking about a lawsuit the American Civil Liberties Union has filed against the U.S. Roman Catholic Bishops on behalf of the pregnant woman who alleges she did not receive the care she needed because of Roman Catholic Church views on abortion. Joining us now from Philadelphia is John Haas. He's president of the National Catholic Bioethics Center. Hello, sir, and welcome to the program.

  • 10:20:40

    MR. JOHN HAASThank you. Good to be with you.

  • 10:20:42

    REHMWould you be good enough to explain the ethical and religious directives that seem to be certainly at the heart of this case?

  • 10:20:53

    HAASWell, the title of these kind of describes what they are. They indicate what the ethical directives are, what the ethical norms are that ought to guide health care in Catholic hospitals as well as religious concerns. And at the core of them is the conviction that the dignity of every patient who comes to a Catholic hospital will be honored and respected.

  • 10:21:20

    HAASAnd just like any organization has a code of ethics, I mean, the American Medical Association has their code of ethics. Nurses Association has a code of ethics. Dentists have a code of ethics. And so there's a code of ethics for Catholic hospitals in this country. They didn't come from nowhere, of course. I mean, in 1913, the American College of Surgeons issued something called the minimum standard that had to be met for an institution to be considered a hospital.

  • 10:21:46

    HAASAnd, in 1918, the Catholic Hospital Association adopted those minimum standards in their entirety to guide their own practices in their institutions. So there's -- over most of the history of the church in this country and healthcare, there's been a convergence between their ethical system and even those of the American Medical Association.

  • 10:22:07

    REHMSo the ACLU lawsuit quotes from the directive. Would you explain?

  • 10:22:15

    HAASWell, they quote selectively from the directives. If all the directives were cited, you could see that the situation that is alleged to have occurred would not have occurred if the directives were being followed. I mean, for example, Directive 27 reads, free and informed consent -- that is, of the patient --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.

  • 10:22:54

    HAASNow, that's a directive that physicians in a Catholic hospital have to follow. If, as this lawsuit alleges, that was not done, then that physician was in violation of the ethical and religious directives for Catholic healthcare services.

  • 10:23:09

    REHMSo what you're saying is that the hospital itself was acting in violation of the code of ethical and religious directives issued by the U.S. Roman Catholic bishops.

  • 10:23:27

    HAASIf what is stated in the press is accurate, then I will say, yes. If the woman was not given all the information necessary, then -- for her to make an informed judgment about the care or lack of care, then the hospital didn't act properly or adequately, or that physician didn't. So the directives there are there to protect the patient fundamentally. And that's why there's a requirement for something like informed consent.

  • 10:23:55

    REHMSo what you're saying is it's not the U.S. Conference of Bishops that's at fault. It's the hospitals, the doctors, the nurses who did not give this patient full information or the fullest opportunity for treatment.

  • 10:24:15

    HAASI would say, yes. You could hardly sue the American Medical Association if a physician who was a member of the American Medical Association did not follow one of the directives found in their code of ethics.

  • 10:24:26

    REHMAll right. Daniel, how do you respond to John Haas' comments?

  • 10:24:34

    MACHWell, one interesting phrase in the directive that he quoted from was morally legitimate alternatives, that the patient needs to be informed about all morally legitimate alternatives, and I think it is a reasonable and expected consequence of that directive to assume that hospitals that have to abide by these directives will not, in all circumstances, provide information that is the safest course of treatment.

  • 10:25:05

    MACHSo, for example, in this case, I think it is quite clear that the safest treatment option for this woman in this circumstance was to induce labor and to terminate the pregnancy. But that information was not conveyed. And this is something, again, that happens in hospitals around the country. So in Durango, Colo., for example, there was a doctor that was admonished for providing that very information.

  • 10:25:29

    MACHThe hospital has a policy barring doctors from discussing the option of pregnancy termination even when the patient has serious illness which could lead to death if the pregnancy were to continue to term. The doctor was warned against that in Colorado. And so I think it is reasonable and expected to assume that that sort of information will not be conveyed to patients, even when it is medically indicated.

  • 10:25:54

    REHMAll right. And joining us now from a studio at WBEZ in Chicago is Dr. Debra Stulberg. She's assistant professor in the department of family medicine at the University of Chicago, a family physician in private practice. Dr. Stulberg, I gather you have some experience in working in a secular hospital that merged with a Catholic-affiliated hospital. Tell us what happened.

  • 10:26:33

    DR. DEBRA STULBERGThat's right. The hospital where I was doing my residency, when I arrived at the hospital, was a secular community hospital. Women's health was a big part of the care being provided at the hospital. And during my first year of residency, the hospital announced that we were going to be taken over by a larger Catholic system. And while I was there, we went through that transition. I received the training in the Catholic directives, and I saw how care changed for patients from before when the hospital was secular to after when it was Catholic.

  • 10:27:11

    REHMGive me an example of how that changed.

  • 10:27:16

    STULBERGWell, most people know that if you want to have an elective abortion, you don't go to a Catholic hospital. But what surprised me and many of my colleagues that are patients was that, after our hospital was acquired by the Catholic system, there were so many other unexpected medical situations that were affected by the Catholic directives...

  • 10:27:35

    REHMSuch as...

  • 10:27:36

    STULBERGYeah, so serious complications during pregnancy. The situation that Ms. Means experienced where the amniotic bag ruptures well before the fetus is viable is one complication. Another is ectopic pregnancy where the fertilized egg, rather than implanting in the uterus where it's supposed to implant, implants outside, usually in the fallopian tube. And an ectopic pregnancy can be a life-threatening condition for the woman. The fetus cannot survive to become a viable fetus or a baby, you know, in the fallopian tube.

  • 10:28:13

    STULBERGAnd so you have to treat the ectopic pregnancy, and there's a range of treatment options depending on the specifics of the medical situation. And shortly after my hospital became Catholic, we had a case where a doctor who had gone through this training in the directives had understood the teaching to be that she couldn't offer one of those standard treatments and a medicine called methotrexate to the patient.

  • 10:28:37

    STULBERGAnd so once the diagnosis of ectopic pregnancy was made, she recommended that the patient leave and go to a hospital where she could get that treatment, thereby sending the woman out with an untreated dangerous condition. So, you know, I can share other stories and other situations as postpartum tubal ligation even when a woman is having a C-section.

  • 10:28:58

    STULBERGIf she's decided that her family is complete, she may not be able to have the tubal ligation procedure at the time of the C-section leaving her to have a second unnecessary surgery, a second round of anesthesia. So we had to stop doing those procedures right away at this hospital. Even every day contraception can be affected. So really there are a wide array of medical situations, especially in the area of women's health and reproductive health where patient care is affected by the Catholic practice.

  • 10:29:30

    REHMDr. Stulberg, I gather you've done some research on OB/GYN care for women at Catholic hospitals as opposed to secular hospitals. What were those findings? How did you do your survey?

  • 10:29:49

    STULBERGThat's right. So I've been involved in two studies. One was a survey of OB/GYNs, a nationally representative sample. And we asked the OB/GYNs: Is your primary place of practice religiously affiliated? And if they answered yes we said, have you ever experienced a conflict with your hospital or practice over its religious policies for patient care? And among OB/GYNs who said they worked in a Catholic institution, 52 percent had said, yes, at some point, they had conflicted with their hospital over its religious policies for patient care.

  • 10:30:29

    STULBERGNow we didn't have space in that survey to ask the nature of those conflicts so we went on to interview a subset of the OB/GYNs who had participated in the survey. And I'm working with a colleague in California named Laurie Freedman. We conducted about -- I believe it was 31 interviews, and we heard stories -- I mean, I can absolutely tell you that Tamesha Means is not alone. Her story is not an isolated incident.

  • 10:30:56

    STULBERGDoctors who work at Catholic hospitals frequently face the situation where a woman whose pregnancy has presented itself as imminently ending, whether it's bleeding in the second trimester or rupture of membranes well before viability. They want to take care of the patient. They want to offer her their full range of treatment options. And in some situations the Catholic hospital really ties the doctors' hands and says, you cannot offer all the treatment options here.

  • 10:31:22

    REHMNow...

  • 10:31:22

    HAASDiane, this is John Haas.

  • 10:31:24

    REHMYes.

  • 10:31:24

    HAASMay I address some of the things that Dr. Stulberg brought up?

  • 10:31:26

    REHMPlease.

  • 10:31:27

    HAASWith regard to the treatment of ectopic pregnancy, so I happen to know that methotrexate is used in many Catholic hospitals. The first president of the National Catholic Bioethics Center had taught pharmacology at Baylor Medical School before he became a priest in the Dominican and a theologian. And he argued for the legitimacy of the use of methotrexate. I'd be happy to provide anybody with Father Albert Marcheski's (sp?) arguments, God rest his soul. He's died now.

  • 10:31:54

    HAASBut, you know, a lot of people overlook Directive 47, and I don't think that's mentioned in the lawsuit by the ACLU. Directive 47 says that there can be interventions to deal with a pathological condition of a pregnant woman, even if it leads to the death of the unborn child. Directive 47 reads, operations, treatments and medications that have as their direct purpose a cure of proportionately serious pathological condition of a pregnancy woman are permitted when they cannot be safely postponed until the unborn child is viable, even if they will result in the death of the unborn child.

  • 10:32:34

    HAASSo we've known many cases where there's been premature rupture of membrane, and infection is setting in. And it would be legitimate to remove the infected membranes from the uterus that's addressing a serious pathological condition of the woman which would result in the death of the unborn child.

  • 10:32:56

    REHMAll right. Let me interrupt for just one moment to say you are listening to "The Diane Rehm Show." I didn't meant to interrupt you, John Haas, but...

  • 10:33:08

    HAASNo, no, I'd finished.

  • 10:33:09

    REHMSo, well, there you are, Dr. Stulberg. When you hear that there are other directives that do allow doctors within a hospital to have some leeway there, does that affect your thinking about this?

  • 10:33:32

    STULBERGWhat the doctors that we spoke to in our research told us was that there is variation in practice. I agree that there are Catholic hospitals where methotrexate is offered. There are Catholic hospitals where pitocin is offered to induce labor. But there are also many Catholic hospitals -- and, again, I say that the story from Michigan is not an isolated incident.

  • 10:33:56

    STULBERGThere are many doctors who told us that because of being a Catholic hospital, because of what their ethical committee, ethics leadership, the priests or nuns providing them guidance and instruction on how to understand the directives, what they were told is, you may not offer, for example, pitocin to induce labor perhaps at all or in many situations until the pregnancy woman shows signs of infection.

  • 10:34:30

    STULBERGWhereas in non-Catholic hospitals the standard practice -- and again physicians told us this over and over -- is to offer the treatment prevent infection. Why wait until the woman is infected? In fact, we had an OB/GYN who specifically said, once the woman is infected, you are behind the ball. She is at risk of serious complications, even death. Why wait? There is no good medical reason.

  • 10:34:52

    STULBERGThe fetus cannot survive. We are not talking about situations where we could do something to save the pregnancy. I agree these are often tragic, but you must do what you can to take good care of the woman. And that's what these doctors told us they were trying to do. And they were told because this is a Catholic hospital you can't do that here. You have to delay.

  • 10:35:14

    REHMJulie Rovner, do you want to comment?

  • 10:35:17

    ROVNERNo. I just have also heard that this definitely differs not just from Catholic hospital to Catholic hospital, but from Catholic health system to Catholic health system. It's important to remember that most of these hospitals are owned by systems, that they're -- and that they do differ in their interpretation from system to system.

  • 10:35:33

    REHMAnd, Daniel Mach, does Director 47 affect how the ACLU will bring its case against the Catholic bishops?

  • 10:35:47

    MACHNo. And we certainly reviewed the directives in detail before filing this lawsuit. And we're well aware of it. And I guess I would just reiterate that this continues to happen, and it continues to happen as a direct result of these directives. And whether or not there's some leeway, there is responsibility that lies at the foot of these directives. And that is part of the problem.

  • 10:36:11

    REHMJohn Haas.

  • 10:36:11

    HAASDaniel, may I ask if you actually quote Directive 47 in the lawsuit?

  • 10:36:16

    MACHNo. And, in fact, all of the directives were not quoted. There's no reason to quote every single directive in the lawsuit, but they're certainly publicly available.

  • 10:36:22

    HAASWell, I think that's (unintelligible) and that it would've addressed that situation that's been described in the press and would've allowed the evacuation of the uterus from an ethical point of view.

  • 10:36:31

    MACHWell, let's take a look at the Phoenix situation. There the -- there was a procedure done to terminate the pregnancy to save a pregnant woman's life. The Hospital Ethics Committee had interpreted the directives to permit them to terminate the pregnancy. But once that happened, the hospital and the hospital administrator, Sister Mary -- Margaret Mary McBride were punished by the diocese of Phoenix, which had determined that the life-saving treatment violated the directives.

  • 10:36:59

    HAASWell, the -- if I may, we were involved in the Phoenix case. The sister was not the administrator of the hospital. And, frankly, all the medical facts of that case aren't known.

  • 10:37:14

    REHMAll right. And short break here. When we come back -- I hope all our guests will stay with us -- we will open the phones for questions, comments. Stay with us.

  • 10:39:57

    REHMAnd welcome back. We're talking about a lawsuit brought by the ACLU against the U.S. Catholic bishops because of directives provided to hospitals -- Catholic hospitals around the country. And we are seeking to find the exact number of those hospitals. It is 630. Earlier in the discussion Julie Rovner quoted one in six hospital beds, but there are actually 630 U.S. Catholic hospitals. And let's open the phones now, 800-433-8850. Let's go first to Jason in St. Louis, Mo. You're on the air.

  • 10:40:55

    JASONHi, Diane. Good morning. Thank you very much for taking my call.

  • 10:40:58

    REHMCertainly.

  • 10:40:58

    JASONI really appreciate the consistent excellence you do with addressing these hard topics.

  • 10:41:02

    REHMThank you.

  • 10:41:03

    JASONI'm a pediatric subspecialist at the largest freestanding Catholic hospital -- Catholic Children's hospital in the United States, and part of a larger system, as was said. And it's interesting to me to note that the descriptor Catholic seems to becoming an increasingly thin fig leaf. None of the system management are -- they're all laypeople now. They're no longer members of the -- of Catholic orders. None of our hospital management is.

  • 10:41:34

    JASONWe certainly see situations where mothers that are -- at our partner hospitals are -- they're not allowed to get tubal ligations after C-sections and things like that that were discussed earlier. But, as a pediatrician, I can tell you that the care that I deliver, it's frequently affected by Catholic doctrine, by ethical burdens that are considerably higher for us because we're in a Catholic institution than I would have at a similar institution.

  • 10:42:02

    JASONWe unfortunately deal with children who have been very badly injured and occasionally are required to pronounce brain dead. And our burden for doing that is vastly higher than acceptance standards for pediatric critical care medicine across the country and at other institutions. And that, unfortunately, happens frequently.

  • 10:42:23

    REHMAny comment, John Haas?

  • 10:42:26

    HAASYes. I'm a little surprised to hear that. The Catholic Church accepts the legitimacy of neurological criteria for determining death, number one. That was taught very clearly by Pope John Paul II. And secondly...

  • 10:42:39

    JASONRight. And (unintelligible)...

  • 10:42:40

    HAASWait, if I may -- if I may just finish. And, secondly, we look to the criteria for the determination of death using neurological criteria to the American Neurological Association. There's nothing -- there's no Catholic doctrine that deals with what would constitute death by neurological criteria. That's something determined by the American Academy of Neurology.

  • 10:43:02

    REHMAll right. But let me...

  • 10:43:03

    JASONSir, I don't content with what's in your guidelines. I'm just stating what's actually happening as a result of those guidelines.

  • 10:43:09

    REHMAll right. Thanks for your call, Jason. And let me just read an email here from Janet. She says, "My father had everything but a tattoo on his forehead, do not resuscitate. In fact, DNR orders were in the hands of his doctors, the Catholic-affiliated hospital, his nurses, and we reiterated his wishes daily to the nurses. His heart stopped at night. He was resuscitated, placed on life support where he remained for days till we finally got permission from his doctor to disconnect him from life support.

  • 10:44:00

    REHM"This was precisely the death he never wanted, and heart wrenching. This Catholic hospital, now part of the Johns Hopkins Group, made a lot of money by disregarding my father's wishes and left horrific memories and guilt for my mother and siblings." Dr. Stulberg, do you see other situations like this where Roman Catholic directives are involved?

  • 10:44:38

    STULBERGYes. Thank you to the email writer for sharing that story. End-of-life care is another area where the Catholic directives may limit the options that doctors can offer to their patients. And, again, there are many ways in which the care is similar. It's not to say that there are no compassionate end-of-life care options for patients. But, for example, one of the directives says that advanced directives that a patient has made knowingly with informed consent need not be followed -- ought not be followed if they conflict with Catholic moral teaching.

  • 10:45:22

    REHMJohn Haas.

  • 10:45:24

    HAASWell, you know, the directives state a person may forego extraordinary disproportionate means of preserving life. Disproportionate means -- this is Directive 57 -- are those that in the patient's judgment do not offer a reasonable hope of benefit or entail an excessive burden or impose excessive expense on the family or the community. That's Directive 57. If that -- if your email is correct, then that hospital didn't act appropriately with regard to following the directives from the patient himself.

  • 10:45:59

    REHMJulie Rovner.

  • 10:46:00

    ROVNERThere are -- for all of the cases that you hear about, women whose pregnancies have gone awry and difficulties in Catholic hospitals, there are dozens, dozens more issues in Catholic hospitals about end-of-life care. This has been an ongoing issue. But I think the real sort of issue that we're kind of stepping around here is this conflict between the Catholic hospital's clear religious right to practice medical care as they see fit and the right of people who are not Catholic to obtain medical care as their religion dictates. And that's where the conflict is going on here.

  • 10:46:38

    ROVNERYou know, as I mentioned, you know, speaking to patients who are not Catholic but may have no other option but to seek care in a Catholic hospital -- and I think that's where the friction is right now. You know, if you're Catholic and you go to a Catholic hospital, then that is your religion, and you're clearly subject to what your religion dictates. But what about the people who are not Catholic and may want a different sort of medical care but that is the only hospital that they have access to?

  • 10:47:10

    REHMRobert Destro.

  • 10:47:12

    DESTROWell, I think the issue that we're stepping around is in even the example of the woman who -- the nurse or the doctor who restarted the poor gentleman's heart. These people are not following the directives. I mean, this is a question of ethical -- how do you define the ethics of an institution? And this is a healthcare institution.

  • 10:47:36

    DESTROAnd as John Haas has pointed out quite nicely, the ethical directives are substantial. They cover a whole lot of territory. And what I'm hearing as an employment lawyer in my own background is that there may be some training problems we have here. And we may have an on-the-ground problem. But when there is a substantial difference of opinion, then a Catholic hospital is going to act like a Catholic hospital.

  • 10:48:03

    REHMDr. Stulberg.

  • 10:48:06

    STULBERGI wanted to follow up on Julie's point -- and I think it was a well-stated one -- but I also want to add that even patients who themselves are members of the Catholic faith have the right to their full set of options. We know that, for example, the Catholic Church prohibits the use of most forms of birth control. And yet most Catholic women, the vast majority, use those forms of birth control, so individual laypeople don't share every value of the bishops'. And they have the right to medical care with full informed consent of all the reasonable medical options.

  • 10:48:44

    REHMBob Destro, in what ways is this case connected to other religious liberty cases, for example, the Hobby Lobby case the Supreme Court has decided to hear?

  • 10:49:01

    DESTROWell, it's very directly related. I mean, these -- the question is how does an institution express its religious point of view? And, you know, we don't want -- the First Amendment prevents anyone from -- or the government from saying, well you can be Catholic in name only, but you're not allowed to act like one. And so the question of whether or not there's going to be differences in ethical standards and hospitals, our doctor from Chicago has quite rightly pointed out, that there are different ethical systems in secular hospitals then there are in Catholic hospitals.

  • 10:49:39

    DESTROAnd so the Hobby Lobby case, in case like these where the ACLU is trying to use state tort law to confine and compel kinds of speech that the Catholic hospitals don't want to engage in, where the states and the federal government, I might add, have protected those rights. That's how the cases are connected.

  • 10:50:01

    REHMJulie, explain briefly that Hobby Lobby case.

  • 10:50:05

    ROVNERWell, first of all, it's been misstated several times. The owners of Hobby Lobby are not Catholic. In fact, they're Evangelical Christians, but it is the issue of whether or not private for-profit corporations have to provide contraception as part of their health insurance packages. There are several, I might add, lawsuits also pending about whether Catholic institutions or religious institutions have to offer this insurance also.

  • 10:50:31

    ROVNERBut what the Supreme Court is now studying is whether for-profit companies have to also offer this. In the case of Hobby Lobby in particular, they're not objecting to offer contraception. They're particularly objecting to have to offer the type of contraceptive that they believe cause very early abortions.

  • 10:50:47

    REHMDaniel Mach.

  • 10:50:49

    MACHSo just stepping back on the broader theme, one of the questions that has been raised here is the question of religious liberty, which we certainly belief is fundamental and is a freedom that we have ardently defended at the ACLU for nearly a century. But in this case, hospitals that open their doors to people of all faiths and rely on taxpayer dollars to stay in business, have to follow the law and provide information in medically necessary care.

  • 10:51:14

    MACHNow, as to the other cases, those are different. They're -- but one theme that may be consistent here is the question of how far does religious liberty extend? In this country you have every right to believe what you want on religious matters, and you actually have a right to act on those beliefs. But not when acting on those beliefs harms the welfare or the rights of others.

  • 10:51:40

    MACHAnd in the contraception mandate cases, that is a situation in which for-profit employers, the cases that are now before the Supreme Court, which have every right to oppose contraception, every right not to use it, every right to advocate against it are insisting on something more. They're insisting on a right to impose their religious beliefs on the health care and the benefits of their employees, many of whom do not share the religious beliefs.

  • 10:52:05

    REHMRobert Destro.

  • 10:52:06

    DESTROWell, you know, I always find it astounding how the ACLU can argue that for-profit corporations like TV networks and newspapers don't have First Amendment rights unless we're going to say that the right to express your religion is somehow different than your right to express your politics. But the fact of the matter is that this for-profit nonprofit distinction has never been accepted by the Supreme Court. And it'll be interesting to see how the cases come out.

  • 10:52:34

    REHMDaniel.

  • 10:52:34

    MACHThat's not what we've argued. One of the central points that we've argued here is that when you do enter the commercial sphere that the claim that your religion is being burdened has to be viewed in the context of the implications of that claim and what you, in the exercise of your asserted rights, are doing to your employees.

  • 10:52:54

    REHMAnd you're listening to "The Diane Rehm Show." Let's take a caller in Murray, Ky. Hi, Linda. You're on the air.

  • 10:53:06

    LINDAHi, Diane.

  • 10:53:08

    REHMHi, there.

  • 10:53:08

    LINDAWhen he spoke about training employees, I kind of giggled because I am going to be 64 years old in February. My mother went to St. Mary's Hospital in Flint, Mich. I was one of five, the oldest. And when she was in labor is when she was told that if they had to save one, they would save the baby, and they would let her go. So it wasn't until she was in labor at the Catholic hospital.

  • 10:53:40

    REHMDr. Stulberg, have you seen any of that kind of statement coming from doctors in Catholic-affiliated hospitals?

  • 10:53:55

    STULBERGThe situation of Tamesha Means or of other women like her who have faced a life-threatening pregnancy complication is analogous to what the caller's describing. Again, an infection that sets into the uterus when the amniotic bag has ruptured can be life threatening to the woman. And the nature has already taken its course to declare that the pregnancy is ending.

  • 10:54:24

    STULBERGAnd so that is a choice. And, yes, we have -- to your question, we have heard doctors describe that exact scenario. We can't act to save the woman or even to, you know, improve her outcome, perhaps save her future fertility, prevent having to do a hysterectomy because the fetus still has a heartbeat.

  • 10:54:47

    STULBERGSo from the -- direct from the standpoint of...

  • 10:54:49

    HAASThat has never been Catholic teaching. I've had people come to me and said, we couldn't do this procedure because a heartbeat was detected. You can't find that anywhere in the Ethical and Religious Directives. The situation that you just described, Dr. Stulberg, could be justified with Catholic moral principles in terms of addressing a serious pathological condition of the woman.

  • 10:55:07

    HAASAnd I have never heard in any legitimate moral textbook ethical guidelines of the Catholic Church that says that if it comes down between you and the baby, the baby will be saved, and you have to die. I mean, that just simply is not Catholic (unintelligible)...

  • 10:55:23

    STULBERGWell, going back to what's in the directives...

  • 10:55:25

    REHMExcuse me, John Haas. Let Dr. Stulberg enter in here.

  • 10:55:30

    STULBERGSo going back to the directives, again I'm aware of Directive 47. There's also a following directive that says in the case of ectopic pregnancy, that we were discussing earlier, no treatment is morally licit, meaning it's acceptable in a Catholic hospital, if it constitutes a direct abortion. So there are restrictions on the treatments that can be offered. And what Catholic theology may consider a direct abortion may differ from -- in medical school. In residency we never were taught that an ectopic pregnancy treatment constituted an abortion. It was treating the condition.

  • 10:56:07

    STULBERGAnd yet there are debates -- legitimate debates, as I understand them -- I'm not a Catholic theologian -- but theological debates about which treatments constitute a direct abortion and therefore are morally licit. And so it's not a random unexpected event that doctors would be told or that local ethicists would interpret that some treatments for ectopic pregnancy are not morally licit.

  • 10:56:27

    REHMAll right. And finally, very quickly, John Haas, the pope has stated a looser guidelines -- and I'm not putting that well -- but he does seem to have shifted or softened his positions on some issues and said that Catholics should not be concentrating so much on abortion or homosexuality. What's your response?

  • 10:57:00

    HAASI would say that's a selective media read of the pope's remarks.

  • 10:57:04

    REHMAll right. And we'll let it go at that. Thank you all so much for joining us, Dr. Debra Stulberg, John Haas, Robert Destro, Julie Rovner, and Daniel Mach. Thanks for listening, all. I'm Diane Rehm.

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