On Friday, Archbishop Joseph Kurtz, President of the defendant United States Conference of Catholic Bishops, issued a statement. It calls the lawsuit "misguided" and promises "to defend these principles in season and out" by "witness[ing] against a utilitarian calculus about the relative value of different human lives".
Notably, the statement makes no dispute of the facts, nor hints of an intention to dispute the facts at trial. It expresses no contrition. It makes no claim that perhaps these "principles" were carried 3 or 4 steps too far in plaintiff Tamesha Means' case.
These actions are morally reprehensible. The proffered reasoning is morally offensive. The caricature of a cold "utilitarian calculus" it claims to oppose is outrageously irrelevant to the core issue of personal autonomy. Even granting the Bishop Kurtz the entirety of "the universal and consistent teaching of the Catholic Church on defending the life of the unborn child" and "that all human life, both before and after birth, has inherent dignity", it remains no excuse whatsoever for nearly all of the complaint.
How does "inherent dignity" justify any of these things?
- "MHP did not inform Plaintiff that in most cases, an amniotic fluid index of 3.4 at 18 weeks of pregnancy, in the context of premature rupture of membranes, means that the fetus will either not be born alive or will be born alive and die very shortly thereafter."
- "MHP did not inform Plaintiff about the serious risks to her health if she attempted to continue the pregnancy."
- "MHP did not raise or discuss with Plaintiff the option of terminating her pregnancy, despite the risks to her health of continuing the pregnancy, nor the fact that the fetus she was carrying had almost no chance of survival."
- "Instead, MHP gave Plaintiff medication to reduce her pain and sent her home."
- "MHP told Plaintiff to return on December 9, over a week later, for her regularly scheduled doctor’s appointment. This misled Plaintiff to believe there was a significant chance that the fetus would become viable and she w ould deliver a healthy baby."
- "MHP did not give Plaintiff any other options for treatment. Upon questioning from Plaintiff, MHP informed her there was nothing else that could be done because Plaintiff was so early in her pregnancy."
How does "inherent dignity" get you there? To not informing someone about their health and healthcare? To deceiving a sick person about their healthcare? How does it get you to "directing" medical doctors to tell outright lies — that nothing else could be done — to their patients about the patient's health?
It doesn't get you there; it doesn't even put you in the same time zone. What does get you there, and what has been going on for far too long on this planet, is a complete lack of respect for women and for their agency.
If you really believed that the "inherent dignity" of this doomed and dying fetus required Ms. Means to take on enormous risks to her health, incredible pain, and a quite substantial risk of death, you would tell her that and argue your case. Maybe if you really believed it you would tell her that and lock her up or take other measures to prevent her from leaving. Maybe if you really believed it you would put her on some analogue of suicide watch. Not telling her is moral cowardice and the height of arrogance. Not telling her and sending her home to quite possibly die on her couch is reprehensible.
The story gets worse from there, if you can believe it.
She comes back the next day bleeding, in pain that she rated 10 out of 10, with a fever. They still didn't tell her that she was at risk, and released her again. "At the time MHP sent Plaintiff home, Plaintiff’s treating physician suspected she had chorioamnionitis, a significant bacterial infection that can cause serious damage to a woman’s health, including infertility and even death. However, MHP did not inform Plaintiff of this possible infection."
Luck saved Tamesha Means from her doctors, who had decided to release her for a third time, when "[w]hile Plaintiff was waiting to be discharged, she began to deliver and the feet exited her cervix. Plaintiff gave birth at approximately 12:13 a.m. on December 3, 2010. Because Plaintiff was only 18 weeks pregnant, the baby died after only about 2.5 hours. The birth was a breech delivery and extremely painful for Plaintiff. The placental pathology report indicates Plaintiff had acute chorioamnionitis and acute funistis at the time she gave birth. ... Chorioamnionitis or funisitis when untreated can result in infertility and have other permanent deleterious health effects for a pregnant woman."
We should call on the Catholic Church and the various entities under its umbrella to expeditiously divest themselves of all interests in and control over health care facilities or programs in the United States and around the world. I think they have some morally useful teachings, I think they do some good works in the world, I like their music and some of their hats, and I've given them some money in the past. I certainly respect everyone's right to free exercise of their chosen religion. No one should give them a nickel until this changes. This is a policy that is certain to lead to horrible painful death for other women, as the Irish version of the same policy did for Savita Halappanavar. (Ms. Halappanavar actually died two years after the events in this case, which in itself is damning evidence that the church sees no mistakes here and has no intention of learning from them.)
The stopped clock phenomenon may make a brief (as always) appearance when the bishop's statement says that "This lawsuit argues that it is legally 'negligent' for the Catholic bishops to proclaim this core teaching of our faith. Thus, the suit urges the government to punish that proclamation with civil liability, a clear violation of the First Amendment." Whether that defense is a defense hinges on the nature to which the "Ethical and Religious Directives for Catholic Health Care Services" (ERDs) are of a purely advisory nature; one would hope that they might be, but the Archbishop makes no statement to that effect, the title "Directives" opposes such a reading, and the document itself reads as institutional policy and not a mere "proclamation".
The extent to which this claim by Archbishop Kurtz is correct in this technical defense is exactly the extent to which the Ms. Means and the ACLU should also sue the more proximate decision makers: her doctors, the hospital, and whatever entities own and control the hospital and were responsible for disseminating the ERDs to the staff and for instructing them or leading them to believe that the ERDs were policy and not feel-good drivel.
Our legal system does not answer hypothetical questions, only questions arising from disputes that have already happened. When (not if) this policy kills again, as it did in Galway, we must not let the responsible parties claim ignorance. I applaud Ms. Means for fighting for her rights and by proxy for those of others similarly situated, instead of waiting for one of those others to die and for her family to raise these issues in a wrongful death suit. Let's hope it needn't and doesn't come to that, though I suspect that it will.
The legal question will be settled by the court. The answer to the moral question, in the meantime, is painfully clear. We should act on it before more women die. We should stop treating the perpetrators here with kid gloves. We should most definitely stop treating them as paragons of moral virtue, with special access to a mysterious and revealed morality.