When Tamesha Means began miscarrying in her eighteenth week of pregnancy, the Michigan mother of two went to a Catholic hospital seeking care.
Means’ water had broken, leaving her with a high risk of infection. If severe, such an infection can cause infertility or even death. No one at the hospital told her that her fetus had virtually no chance of survival at this point, or that the safest course of care would be to terminate the pregnancy. Nor did they admit her to the hospital to be monitored. Instead they told her there was nothing they could do for her. They sent her home—in pain–and when she returned the next morning, they sent her home again, even though her temperature had started rising. That evening, on her third trip to the hospital, she arrived with an infection in the membranes that surround the fetus. They were preparing to send her home again when she miscarried the pregnancy on her own.
This might look like a malpractice case over physical and emotional pain and suffering. But Means is not suing the hospital or the doctors. Instead, she is being represented by the ACLU, which has announced a suit against the United States Conference of Catholic Bishops. Their rationale: The bishops were negligent because Means was denied care on the basis of the religious directives that governed care at the hospital. Doctors, Means’ side contends, had withheld treatment due to their understanding of something called Directive 45. It reads: “Abortion (that is, the directly intended termination of pregnancy before viability or the directly intended destruction of a viable fetus) is never permitted.”
Skeptics of the lawsuit have criticized it, in part, on bureaucratic grounds: The Bishops, University of Illinois law professor Robin Fretwell Wilson, told CNN, are too many bureaucratic steps away from doctors to be “whispering in their ears” about the details of care. John Berkman, a professor of moral theology at the University of Toronto, told American Prospect, “It’s not like the USCCB is the general of the army and the hospitals are their subordinates… Anyone who thinks that the bishops say a word and everyone follows in lock step is naïve.”
I think those skeptics are wrong.
Over the past three years, working with my colleague, University of Chicago physician Debra Stulberg, I’ve done research on ob-gyns at Catholic Hospitals. Stulberg’s previous research showed that 52 percent of ob-gyns in the U.S. who work in Catholic hospitals have had conflicts with their institutions' religiously-based policies. We set out to find out about the nature of those conflicts through in-depth interviews with physicians. Our work, which was published in the American Journal of Bioethics Primary Research in October of this year, has included close attention to the treatment of pregnancy complications. In the interviews, doctors repeatedly told us that they feel their hands are tied by the Catholic doctrine and hierarchy that govern the hospital—doctrine that, they told us, leave them unable to manage pregnancy complications as they were trained to do in residency.
The role that bishops play in healthcare is not a narrow, niche issue. Today in the U.S., one out of six hospital patients are treated in a Catholic facility; four of the 10 largest health systems are Catholic. In many places, the Catholic hospital is the only option for care.
While some argue that religious groups should be entitled to follow their own doctrine in their own hospitals, this argument is based on the antiquated notion of faith-based care. Catholic hospitals employ and treat people of all faiths with federal dollars, providing a similar proportion of charity care to most other hospitals; new data show that they actually serve a lower proportion of Medicaid patients than other hospitals.
The U.S. Bishops at the center of the lawsuit are the authors of the Ethical and Religious Directives for Catholic Health Care Services, which apply to all staff and clinicians within Catholic hospitals. The directives are not optional; they’re a condition of medical privileges and employment. (In fact, Directive #5 specifically states that following the directives is mandatory.) Each Catholic hospital is overseen by the local bishop.
The physicians in these hospitals expect serious professional consequences for violating directives. As one physician told us, “It was actually included in my contract that we would abide by the Catholic ethic.” In our research, we conducted detailed interviews with 27 obstetrician-gynecologists who had experience working in Catholic hospitals located in 15 states, with the understanding that the physicians’ names would not appear in our published results. We asked them what they liked and disliked about their hospitals, and followed up about how they manage particular clinical scenarios of interest in the directives. Doctors told us in no uncertain terms they feel beholden to them and that the bishops’ influence and authority over care is indeed a part of their everyday reality.
“I get the feeling that virtually everyone involved, even on the hospital side, wishes that it was like the old days, five years ago, when there was no scrutiny paid to this,” one physician said, in reference to a recent effort by her bishop to stop all tubal ligation sterilization procedures in her hospital. “No one was really paying attention. No one worried about it. Tubal ligations were done at the time of C-section. Everyone sort of accepted that you couldn't do a tubal ligation in any other scenario within the hospital, but you could do it at the time of C-section because the woman’s abdomen’s open and that was accepted and that’s okay. And I think everyone kind of wishes it would go back to that. I think the majority of people I interact with, whether it’s administration or staff, I just get the sense that they just do not believe that this is a battle that the Church should be instigating at this point.”
Or, as another doctor put it more bluntly: “I’m sure you know, the bishop has total control.”
Relationships between bishops and physicians are mediated by hospital administrators and hospital ethics committees. The committees, often led by a clergy member, serve as gatekeepers to prohibited care. Sometimes their decisions can be made quickly, with no delay in approval and treatment. Other cases have not gone so well.
The scariest story I heard from a physician came during a previous research project. The doctor recalled a moment when he simply could not get his Catholic ethics committee to approve the intervention he knew was the best treatment:
I'm on call when she gets septic, and she's septic to the point that I'm pushing pressors on labor and delivery trying to keep her blood pressure up, and I have her on a cooling blanket because she's 106 degrees. And I needed to get everything out. And so I put the ultrasound machine on and there was still a heartbeat, and [the ethics committee] wouldn't let me [surgically empty her uterus] because there was still a heartbeat. This woman is dying before our eyes. … She was so sick she was in the [intensive care unit] for about 10 days and very nearly died.
While near-death was not typical, delaying and denying care was. Another physician told a story of how she and another physician were called before their ethics committee and colleagues to defend their course of care for a different case. This time the woman had begun miscarrying a fetus with a heart problem:
There were two members of the committee who were very vocally sort of accusing us of carrying out an elective abortion. And I said, you know, “There was nothing elective about this. This woman didn’t choose to have her membranes rupture at 19 weeks. She didn’t choose to have a baby with the most severe form of congenital heart disease. There was nothing elective about this.
In that case, two physicians were publicly admonished because they had not delayed care, and had instead administered medication without asking the committee first. In a Catholic hospital, while the fetus still has a heartbeat, no matter how inevitable the loss is, treatment that speeds it up is considered to be an abortion. These ethics committee leaders told the physicians they should have managed the patient “expectantly,” meaning they should not have given medications. They should have waited for her to expel the pregnancy on her own, regardless of what the patient wanted or the fact that it could take a long time, be quite painful, and bring about infection.
A vague loophole, Directive 47, allows ethics committees to approve emergency abortion care when the physician can prove to the ethics committee that the patient’s life is threatened, most often by the presence of infection. Unfortunately, meeting the directive’s requirement of demonstrating a “proportionately serious” pathology means that physicians have to wait for their patient to become infected before they can offer treatment. In miscarriage, a woman is at risk for infection as soon as her membranes rupture. In a non-Catholic hospital setting, doctors preventatively offer medication or surgery to complete the miscarriage before infection sets in. In the Catholic hospital, infection is the sine qua non of the treatment approval.
This creates a dangerous situation for women, and an unpleasant one for doctors. One doctor described it this way: “It’s very difficult to stand there and watch a patient, wait for the patient to present with chorioamnionitis [infection] when you know that that could be prevented.”
This form of medical care—watching and waiting for a patient to become sicker, so that you can provide treatment—cannot be how most physicians hope to practice medicine. Yet, this is how the Catholic bishops are telling them to practice medicine. The authors of Catholic Health Care Ethics, A Manual for Ethics Committees warn members of Catholic hospital ethics committees: “The mere rupture of membranes, without infection, is not serious enough to sanction interventions that will lead to the death of a child.” In order to avoid watching their patients get infected in this way, some physicians told us that they prefer to transfer them to a non-Catholic facility if the patient is stable enough to go.
The presence of the bishops came up in physician narratives in other ways beyond their authorship of the Directives. Doctors generally mentioned the bishops when there was a change in enforcement patterns around restricted care. One doctor who grew up Catholic explained that bishops differ; some are more hands on than others:
Sometimes, you know, they’ll say “we’ve never changed our policy” but they have. But it’s fair to say that some bishops, they like to call it a more pastoral approach, which means they’re kind of supportive and they keep their nose out of the reproductive issues. Some bishops take a more, sometimes they’ll say a more magisterial approach and they’ll say “we’re more interested in making sure we follow the teachings of the magisterium.
The latter might be a good characterization of Arizona Bishop Thomas Olmsted. In 2010, he excommunicated the nun who led an ethics committee that had approved a life-saving abortion for a very ill mother of four. Olmsted went on to strip St. Joseph’s hospital of its Catholic affiliation after it refused, as he demanded in an open letter, to acknowledge in writing that the abortion was a mistake and that it would never happen again. He warned in the letter, "There cannot be a tie in this debate. Until this point in time, you have not acknowledged my authority to settle this question."
In our interviews we repeatedly heard of similar moments when local bishops became directly involved. For example, a physician said, when he first joined his Catholic hospital, women with ruptured membranes were admitted to the hospital, monitored for three days, after which point they could offer termination. But the policy changed:
The Ethics Committee was told—I do believe it was the bishop and the state, whatever their medical people are, the ones that—When the new pope was elected [Benedict] there was a change in leadership of the churches … what we do now, is … before we admit them to the hospital, we’ll tell them that we can’t terminate them and we’ll offer them options to go to another hospital. But then they are no longer under our care. We have to transfer their care because we don’t admit to any other hospitals.
Other physicians talked about how hospital practices changed for tubal-ligation sterilization procedures sought by women who do not want to have any more children. While all sterilizations are prohibited in Catholic hospitals, some make exceptions for women who are very sick and for whom another pregnancy would be quite dangerous: “It was apparently bishop by bishop, and the bishop in [my city] was fairly liberal… But then the bishop became much more conservative and the diocese became much more conservative and it’s absolutely never allowed.” Another physician told a similar story about a different hospital and bishop, spelling out how pressure was exerted down the line to doctors:
The bishop really started putting pressure on the hospital and saying “we don’t want you to do any tubal ligations at the time of Cesarean delivery.” And this is a big deal for us because we’re a big hospital and we’re a tertiary care center and we run a high-risk obstetric service and we get maternal transports and we get people transported with bad medical problems and complicated pregnancies and people who pregnancy really does jeopardize their health. And so when he really started putting pressure on the administration, the administration consequently started putting pressure on the clinicians not to do tubals at the time of C-section.
Our research makes clear that doctors consider the directives authoritative over key areas of medical practice. Which brings us back to the question: Who’s to blame in the case of Tamesha Means? Some Catholic leaders and scholars say that the blame in Ms. Means' case lies with the physician and hospital, not the bishops. But it appears that her doctors were following their understanding of Catholic health doctrine, and based on our research it is clear that these directives shape physician decisions all the time. The United States Conference of Catholic Bishops can’t have it both ways. They cannot claim authority over care without responsibility for safe practice. No court date has yet been assigned to Means’ case.