A Catholic hospital in Michigan is refusing to provide a tubal ligation to a woman suffering from a brain tumor who has been advised not to have any more children in the latest skirmish in an increasingly contentious battle pitting claims of religious liberty against accepted standards of care for women.
Jessica Mann was told by Genesys Regional Medical Center in Grand Blanc Michigan, which is part of the Ascension Health Care System, that her doctor couldn’t perform a tubal ligation after the planned caesarean section delivery of her third child because tubals are banned by the Catholic guidelines for health care services. Mann, who is eight months pregnant, would have to find both a new hospital and a new doctor to have the procedure because her doctor only has admitting privileges at Genesys, reports the Washington Post.
While Catholic hospitals routinely refuse to perform contraception sterilization, some make an exception for women with severe health conditions or who are having a planned C-section because it allows them to avoid the risks of a second surgery at a later date. “When the woman’s physician can make a strong case to a hospital ethics board, sometimes the procedure is approved,” Lois Uttley of MergerWatch, told RD.
But last November, Genesys announced that it would ban all tubals, prompting the ACLU of Michigan to ask the state for an investigation, noting that “Genesys’ ban on tubal sterilization is contrary to the standard of care … and subjects women to unnecessary health and pregnancy risk.”
Genesys’ move appears to be part of a trend of Catholic hospitals cracking down on exceptions for medically necessary tubal ligations, which worries women’s health advocates because of the rapid growth of Catholic health systems; Ascension is now the largest nonprofit hospital system in the US. A recent study found that half of all doctors working at Catholic hospitals experienced conflicts over religiously based restrictions on patient care and that concern over their inability to provide tubals ranked the highest:
Physicians expressed that their inability to provide tubal sterilization to women, due to the Catholic Directives, sometimes posed a risk of harm to those patients. They discussed instances in which future pregnancy was medically contraindicated, and instances in which patients were undergoing a medically indicated cesarean section and the physician felt that denying a concurrent tubal ligation would expose the patient to unnecessary risk with a second surgery.
The study also found that more and more hospitals that used to allow the practice are now forbidding it. As one doctor told researchers:
I think what happened was that someone from the archdiocese that encompasses this area was in contact with the hospital administration and, basically, said, ‘I think we have a problem, and this needs to stop.’ And so, what was a very easy sort of step, being able to just go forward and do the tubal ligation at the time of the c-section, changed gradually.
Catholic hospitals’ ability to refuse sterilizations is generally considered “ironclad” reports the Washington Post. That’s because the Church Amendment, the granddaddy of all religious liberty exemptions, specifically exempts faith-based hospitals from having to provide abortion or sterilization. However, increasingly the ACLU and other advocates are looking to state and federal anti-discrimination law to challenge these exemptions. Writing in the Yale Law Journal, Elizabeth Deutsch notes that the Affordable Care Act may provide a new avenue to challenge reproductive health exemptions:
In the [ACA] Congress expanded a novel commitment to nondiscrimination in healthcare, which, for the first time, may recognize as sex discrimination the kinds of refusals of … reproductive health care that have increasingly taken hold across the country.
According to Deutsch, Section 1557 of the ACA bans health programs receiving federal funds, including hospitals, from discriminating on the basis of sex: “When providers seek out a medical service specially affecting women’s reproductive capacity for exclusion, they target pregnant women or women of childbearing age for unequal treatment.”
She says Section 1557 should be “viewed as a federal counterweight to conscience protections, requiring us to reassess the balance between sex equality and religious liberty.” In addition to challenging Church Amendment protections, she notes that “Section 1557’s commitments to healthcare access may represent a compelling interest” that courts would have to weigh seriously when considering reproductive health-related claims under the Religious Freedom Restoration Act.
Importantly, Deutsch notes, Section 1557 wouldn’t challenge the conscience protections of individual providers, but would “constrain institutional claims of conscience and free up willing physicians employed at religious hospitals to provide services.”
Efforts to use state anti-discrimination laws have seen some preliminary sucess. Mercy Medical Center, a Catholic hospital in Northern California, recently relented and allowed a woman to have a tubal when the ACLU threatened to sue for sex discrimination under state law.
For now, the ACLU of Michigan has sent a letter to Genesys invoking state law that prohibits hospitals from failing to exercise due care or provide the accepted standard of care and asking it to reconsider the case “in light of the hospital’s duty to abide by medical standards of care in the treatment of patients, rather than religious directives.”
“We hope that they will do the right thing and we won’t need to take further action,” Brigitte Amiri, an attorney with the ACLU’s Reproductive Freedom Project, told RD. MergerWatch’s Uttley said, however, “It’s unfortunate that women have to argue their case, either through appeals to hospital ethics boards or through threatened lawsuits, for the right to receive a common procedure like a post-partum tubal ligation.”