Claims - April 2014

peril, and that she was deprived of information about her condition because of rules issued by the bishops conference that govern all Catholic health care in the U.S. The rules—which Mercy and its staff are required to follow—prohibit abortion, and as a result, according to Means’ lawyers, doctors would not give up on the pregnancy.

The move to sue the bishops was unprecedented, and everyone from the New York Times to the National Catholic Register heralded the case as a new front in the culture war over religious liberty, gender equality and reproductive care— a version of the same raging conflict that will play out before the Supreme Court next week when it hears arguments in the Hobby Lobby/Conestoga Industries contraception cases. Those cases challenge the Affordable Care Act’s rules requiring employers to provide birth-control benefits to their workers, even if the employers have religious objections.

When the Means suit was filed, the bishops called the allegations “baseless” and “misguided” and defended Catholic health care’s “stellar history of caring for mothers and infants.” Otherwise, though, they were silent.

Now, the bishops and their attorneys have followed up with a motion to dismiss the case, and ProPublica has taken the first sustained look at their arguments.

The bishops, for the most part, have chosen to avoid sweeping language about constitutional rights and freedoms, instead focusing on the nitty-gritty procedural issues that are basic to high-stakes civil litigation. They argue, essentially, that the ACLU has chosen the wrong venue—federal court in Detroit—to sue (the USCCB is based in Washington D.C.) and is mistaken in blaming the USCCB for decisions made by individual bishops in their own dioceses.

The arguments echo what some legal scholars have been saying for some time: that the lawsuit is at best a long-shot. A hearing is scheduled for May on the motion to dismiss.

First some background: The ACLU
and women’s groups have been voic-
ing concern since the 1990s about the
growing role of Catholic health care op-
erations around the country and what
they see as the resulting threats posed to
women’s reproductive rights. Those com-
plaints have grown louder in recent years
as Catholic facilities have moved aggres-
sively to merge with secular hospitals and
reports have surfaced about the challeng-
es – some say contortions—that doctors
and nurses have sometimes had to face to
comply with church teachings on abor-
tion, birth control, and end-of-life care
while fulfilling their duty to patients.
Catholic hospitals now account for
about 16 percent of hospital beds in the
U.S. And in eight states—including Wash-
ington, Oregon, Iowa, and Missouri—
they control more than 30 percent of beds.
Ten of the 25 largest health-care networks
in the country are Catholic-sponsored.