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Judge Tells Women Who Fear They Could Die If They Don’t Get An Abortion To Go Away

CREDIT: AP PHOTO/ALEX WASHBURN
CREDIT: AP PHOTO/ALEX WASHBURN

A lawsuit seeking to protect women who could be seriously injured or even killed if they are unable to terminate their pregnancies will not move forward, according to an order handed down by a federal district judge on Monday.

The suit concerns the Ethical and Religious Directives for Catholic Health, a set of instructions for health providers published by the United States Conference of Catholic Bishops, which include strict limits on which reproductive services may be provided to women.

“Abortion,” according to the directives, “is never permitted.” Though the directives do permit “operations, treatments, and medications that have as their direct purpose the cure of a proportionately serious pathological condition of a pregnant woman,” even if such treatment will terminate the woman’s pregnancy, they do not say that the woman gets to decide what constitutes a “proportionately serious pathological condition.” Notably, the directives also provide that “no intervention . . . which constitutes a direct abortion” is allowed “in case of extrauterine pregnancy.” Thus, women may be prevented from aborting a life-threatening pregnancy that has no possibility of maturing into a viable fetus.

In the throes of an emergency, it probably won’t occur to many women to direct the ambulance driver to take them to a facility that does not adhere to an obscure set of medical directives authored by clergy without medical training.

The ACLU sued Trinity Health Corporation, a multi-state, Catholic hospital group that adheres to the restrictions contained in the directives. Notably, the ACLU acted on behalf of some of its members who are currently pregnant, including at least one who “had a history of severe pregnancy complications requiring the directly intended termination of the pre-viability pregnancy,” and who “lives in a county where the only hospital was a Trinity Hospital.” Thus, if she experienced similar complications in the future, she may be unable to obtain the appropriate emergency medical care from a nearby hospital.

The suit argued that denying such emergency care to women violates two federal laws.

According to Judge Gershwin Drain’s opinion, however, these women won’t even get an answer to the question of whether Trinity is violating the law. Under a doctrine known as “standing,” a plaintiff may not bring a federal suit unless they have actually been injured by the defendant. Among other things, Drain reasoned that the ACLU’s claim that some of its members are likely to be injured by Trinity’s refusal to provide them with the full range of emergency care is “too speculative.” “Plaintiffs cannot guarantee that their pregnant member will experience complications, choose to get treated at Defendants’ hospitals, or even require hospitalization,” Drain wrote.

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It’s far from clear that Drain, an Obama appointee to the federal bench, is wrong about how this case should turn out under existing Supreme Court precedents. In City of Los Angeles v. Lyons, which Drain quotes in his opinion, the justices denied relief to an African-American man who was choked by a police officer until the man passed out and eventually awoke covered in his own urine and feces. This chokehold victim, a 5–4 Court reasoned, could not seek a federal injunction preventing the police from using similar chokeholds in the future unless “he was likely to suffer future injury from the use of the chokeholds by police officers.” It wasn’t enough that the man had been choked to the point of unconsciousness by a cop in the past — he had to show that police were likely to choke him again in the future.

So long as Lyons remains good law, it will be difficult to challenge policies like Trinity’s ban on medically necessary abortions — or, at least, to bring such a challenge before a woman suffers a potentially serious injury. Few women can know in advance that their pregnancy will result in serious complications that are likely to require termination, and many of those that do know of such a risk are unlikely to become pregnant in the first place. Of course, a woman who is in the middle of a life-threatening medical emergency would have standing to seek an injunction from Trinity if she is denied care, but that woman is likely to have much more immediate concerns on her mind than hiring a lawyer who can somehow draft a legal complaint and file it before the emergency is resolved.

This failed suit against Trinity, moreover, highlights an increasingly widespread problem for women who need emergency obstetric care. Approximately one in six patients in the United States are treated in Catholic Hospitals, and about a third of these hospitals are located in rural areas where there may not be other hospitals nearby. Thus, many women may not have access to a nearby hospital willing to provide medically necessary care, and even those that do may not know to seek such a hospital out until it is too late.

In the throes of an emergency, it probably won’t occur to many women to direct the ambulance driver to take them to a facility that does not adhere to an obscure set of medical directives authored by clergy without medical training.