HHS is considering its request. But can it hold up in court?

by STEVE WEATHERBE 11/03/2010 / National Catholic Register

WASHINGTON — The Department of Health and Human Services is considering a request from the American Civil Liberties Union that it compel Catholic hospitals to provide emergency abortions.

But the Becket Fund for Religious Liberty has vowed not only to provide free legal defense for any hospital the HHS takes action against, but to sue the feds to stop them.

“We have acknowledged receipt of letters from the ACLU and an organization holding the opposite view, but have taken no other action,” said Ellen Griffith, spokeswoman for the Centers for Medicare and Medicaid Services. “All we can say is that the matter is before us for consideration.”

But Becket Fund director of litigation Eric Mossbach said the Centers for Medicare and Medicaid Services may simply be waiting to see how the midterm congressional election goes. With a Democratic majority, “the administration may decide that ‘now we can push for this’ — or not, if there is a Republican majority.”

Mossbach calls the ACLU move “an attempt to use an administrative application to undermine what Congress has tried to protect” — namely the freedom of religious hospitals to refuse to do abortions orother acts contrary to conscience.

The ACLU wrote the Centers for Medicare and Medicaid Services acting administrator Marilyn Tavenner on July 1, arguing that the Emergency Medical Treatment and Active Labor Act (EMTALA), passed by Congress in 1986, includes “emergency reproductive health care” — i.e., abortions — in its requirement that all hospitals treat anyone needing emergency health care, regardless of citizenship, legal status or ability to pay.

The request cites the highly publicized November 2009 case at St. Joseph’s Hospital in Phoenix, in which Sister Margaret McBride, who sat on the hospital’s ethics committee, was excommunicated after voting to approve an abortion to end a pregnancy with serious health risks for the mother.

The ACLU went on to describe three other cases (without giving names) where, it claimed, Catholic hospitals endangered the lives of pregnant women or caused serious injury by refusing to perform abortions.

According to the ACLU, “There is no basis for a hospital to impose its own religious criteria on a patient to deny her emergency care.”

Yes, there is, says John Haas, president of the National Catholic Bioethics Center: the Church Amendment. No sooner did the Supreme Court legalize abortion with its 1973 decision in Roe v. Wade than “a Catholic hospital was hit with a court order forcing it to do sterilizations. Congress responded the same year by passing the Church Amendment, named after Senator Frank Church.” It prohibits federal agencies from requiring religious hospitals to perform either abortions or sterilizations.

Other amendments along the same lines have followed, protecting pharmacists and individual medical practitioners, but so have efforts to limit their effects.

“We know what the agenda of the ACLU is,” Haas said. “And it’s what the National Abortion Rights Action League wants. No restriction on abortion: the unbridled right to choose.”

Double Effect

Haas says the ACLU letter misrepresents Catholic teaching on abortion. While the unborn child’s life can never intentionally be taken, he says, “according to the doctrine of double effect, an operation can be done to save the mother” even if it has “the effect” of the death of the child.

Haas went on to say that some Catholic hospitals may not understand this doctrine, which is why the NCBC offers them courses and programs in medical ethics.

The Catholic Health Association, which represents Catholic hospitals, declined to respond to the Register’s request for comment, but in July, its CEO, Sister Carol Keehan, told Catholic News Service that “a couple of stories that the ACLU has dredged up doesn’t hold a candle to the competent care and respect for both mothers and their infants that have been a daily part of life in the maternity units and neonatal units of Catholic hospitals for decades.”

Half of the 20 largest health organizations in the U.S. are Catholic, and pro-choice critics such as Catholics for Choice call the recent spate of mergers between Catholic and other hospital providers an expansion of the Catholic ban on abortions.

The ACLU, in response to the Register’s request for an interview, sent a prepared statement that said in part: “The ACLU firmly believes in the fundamental right to religious exercise and expression, and we have a long history of defending that right.

“But this does not mean that a hospital can deny a woman emergency care and put her life and health at risk because it is affiliated with a religion that opposes abortion. … We all may not agree about abortion, but we should be able to agree that hospitals that serve the general public should not be permitted, under any circumstances, to violate federal law and deny life-saving care.”

Mossbach told the Register that the ACLU is trying to get around the constitutional guarantee of religious freedom with a regulatory decision, just as pro-abortion forces hope to see HHS regulatory decisions force health insurance to pay for all abortions.

“The Becket Fund will defend any hospital if the government goes after them,” said Mossbach. “So far nobody has taken us up on our offer, I think, because the government hasn’t taken any action — yet.”

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