By Caroline Johnston Polisi
Friday, July 9, 2010
A legal commentator analyzes the possible reverberations of a Catholic nun being excommunicated for authorizing an abortion that saved the life of a young woman and the ACLU's decision to act against what they say is a violation of federal law.
(WOMENSENEWS)--Late last year, when a young mother of four came through the doors of St. Joseph's Hospital and Medical Center in Phoenix, Sister Margaret Mary McBride made a difficult decision. The choice she made would turn out to be the definitive one of her career.
Because of it, she suffered a very public excommunication at the hands of Bishop Thomas J. Olmsted, was held up by the Roman Catholic Church as an example of a former "woman religious" turned apostate and resigned at the request of the bishop from her position as vice president of mission integration at the hospital.
While details of the case remain hidden by federal privacy laws, the maelstrom of media attention generated by the incident has provided some information concerning the events that took place.
The woman, age 27, was 11 weeks pregnant and suffered from a serious condition called pulmonary hypertension, which ultimately led to a diagnosis of right-sided heart failure and shock. In consultation with her family and a team of doctors, the ethics committee of the hospital--on which Sister McBride sat--voted to allow an emergency abortion in order to save the life of the woman.
In a statement released shortly after the incident became public, the Roman Catholic Diocese of Phoenix proclaimed it a "scandal that a Catholic hospital would perform such a reprehensible act" and insisted that a set of ethical and religious directives, to which St. Joseph's and countless other public Catholic hospitals adhere, prohibit direct abortions under any circumstances--even, apparently, if that means almost certain death for the mother and fetus.
Representatives at St. Joseph's Hospital responded with a statement of their own, firmly reiterating that the procedure was necessary to save the woman's life.
Much of the attention over the past few months has centered on murky questions of ethical and religious significance, with popular reactions ranging from outrage at the Catholic Church for its treatment of Sister McBride to a renunciation of the hospital for opposing church directives.
With attacks so virulent coming from both sides of the political spectrum, it's important to recognize the situation for what it is, and what it is not. It is not a platform to criticize members of the Catholic Church for their deeply held religious beliefs. They are entitled to them. Nor is it a time to delve into the complex moral and political arguments so often associated with the practice of elective abortions.
Rather, it is an opportunity to identify and rectify a troubling and dangerous violation of federal law potentially taking place in Catholic hospitals across the country.
Last week, members of the American Civil Liberties Union's Washington legislative office did just that, along with the ACLU of Arizona and the New York-based ACLU Reproductive Freedom Project. Together, the civil liberties organizations sent a letter addressed to the Centers for Medicare and Medicaid Services, a division of the Department of Health and Human Services. In it, the organizations raise possible systematic violations by religiously-affiliated hospitals of the Conditions of Participation of Medicare and Medicaid and the Emergency Medical Treatment and Active Labor Act (EMTALA).
EMTALA became law in 1986 and applies to hospitals that accept federal dollars for Medicare and Medicaid services, which, in practical terms, is almost every hospital in the United States.
The law governs how and when a patient can be denied medical treatment or transferred to another hospital when she or he is in an unstable medical condition. While the act covers hospitals that receive funding for Medicare or Medicaid, the requirements apply to every patient the hospital treats, not just those using the programs.
"Religiously-affiliated hospitals--which are often the only hospital in a particular area-- are not exempt from providing critical care to patients who come through their doors," said Daniel Pochoda, legal director of the ACLU of Arizona, in a press statement issued last week.
The letter cites an American Journal of Public Health article that documents refusals by various Catholic hospitals to provide urgent medical reproductive care in miscarriage management cases. In each situation described, the letter asserts, the hospital in question placed a woman's life or health at risk in direct violation of federal law.
The ACLU's legal argument hinges on an interpretation of a section of federal law that requires hospitals to stabilize patients with an "emergency medical condition," defined as a situation in which the health of the patient is in serious jeopardy or the patient risks serious impairment to bodily functions or dysfunction of a bodily organ. There are unfortunately countless conditions in which termination of pregnancy will be necessary to stabilize a patient, they argue. They also allege violation of federal law in the various hospitals' failings to provide their pregnant patients with all available treatment options.
"The law rightly requires hospitals to provide life-saving medical care to their patients," said Vania Leveille, ACLU legislative counsel. "The government must ensure that the well-being of the patient does not take a back seat to religious beliefs."
The civil liberties group seeks a comprehensive investigation as well as an explicit clarification of protocol in situations similar to the one that gave rise to Sister McBride's excommunication. They request an immediate in-person meeting with Marilyn Tavenner, an administrator and chief operating officer of the Centers for Medicare and Medicaid Services, which is responsible for the development and enforcement of EMTALA.
In taking a hard-line stance against the violations of the rights of women in religiously-affiliated hospitals, the ACLU provides a morally neutral framework to analyze the situation: hospitals that refuse to provide emergency medical reproductive health care jeopardize the health and lives of women in direct violation of federal law.
While Sister McBride's decision has no doubt caused her immense personal suffering, the uproar surrounding her excommunication has and will continue to resonate publically. It has shed light on a troubling problem that cannot be rectified without government intervention.
Many await the Centers for Medicare and Medicaid Services' response and hope it strikes a proper legal balance between respect for individual religious liberty and patient safety.
Caroline Johnston Polisi is an attorney and freelance journalist in New York City who does volunteer legal work for the ACLU's Reproductive Freedom Project. She wrote this article in her individual capacity.