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  1. Opinion

The church didn't want a fetus to sue

Published Mar. 3, 2012

I have a solution to the battle royal between the Catholic Church and the Obama administration over providing free birth control to employees at Catholic-run hospitals and universities: Blame the lawyers. The Catholic Church relied on this handy excuse when it bent its religious creed to save some bucks. It's time to dust it off once again.

I'm referring to a group of tort cases in which Catholic hospitals defended themselves against lawsuits from aggrieved parents of a dead fetus by claiming that an unborn child is not a person.

And I should know. When I was executive director of the ACLU of Florida in the 1990s, we filed an amicus brief on behalf of a Catholic hospital in Jacksonville. It didn't want Florida's Wrongful Death Act to include the unborn within the definition of a person, and neither did we.

The case involved Gwendolyn Young, who sued Jacksonville's St. Vincent's Medical Center after one of her twins was stillborn. At the time, the hospital was owned and run by an order of Catholic nuns so strict that the hospital would not do in vitro procedures, sterilizations or distribute birth control, never mind perform abortions.

Problems for Young arose in late 1989 when she underwent amniocentesis and a doctor accidentally punctured one of her twins with the needle. Young was sent home only to be back the next day for an emergency Caesarean section. One twin was born alive; the other was stillborn.

Young brought suit on behalf of the dead twin, claiming that her unborn daughter had been capable of independent survival outside the womb and therefore qualified as a "person" under Florida's Wrongful Death Act.

To avoid liability and whatever money damages might ensue, St. Vincent's urged the courts to uphold the state's current precedent, which established personhood only after the infant was separate from the mother and born alive.

In 1996, that position unanimously won the day in the Florida Supreme Court. But when the press came calling about the apparent hypocrisy, the nuns left it to the lawyers to explain. William Kuntz, the hospital's trial attorney, said their stance was that "an unborn person does not have the right to bring a lawsuit," not that a fetus is not a person.

Got that? Interestingly, part of the legal team representing St. Vincent's in the case was John Thrasher, who would soon be speaker of the Florida House. Thrasher is now a Republican state senator from St. Augustine with a dependably antiabortion voting record. His staff said he was too busy to return calls.

St. Vincent's isn't alone in choosing money over principles. St. Joseph's Hospital in Yonkers, N.Y., a Roman Catholic hospital, also denied the personhood of a full-term stillborn girl born in 1994 in an effort to defeat a lawsuit by the parents. And in 1998, St. Peter's University Hospital, a Catholic hospital in New Brunswick, N.J., used the same legal tactic in a case involving the nonconsensual autopsy of 18½-week-old stillborn twins. The church claimed that under New Jersey law fetuses are not persons until 20 weeks' gestation, so no permission of the family was required. After a public uproar, Bishop Vincent Breen of the Dioceses of Metuchen issued a statement saying that the strategy was his lawyers' fault.

These cases have pretty much gone away since states overwhelmingly permit lawsuits for injuries to the unborn. But they suggest that Catholic institutions are not at all averse to letting their lawyers exploit laws that violate religious tenets when it's in their financial interests. So why not employ the same strategy in the current birth control debate?

Under President Barack Obama's health care reforms, health insurers for Catholic hospitals and universities will have to offer workers contraceptive services without charge to the employee or employer. This reasonable accommodation absolves religiously affiliated employers of any duty to provide contraception. It's up to the insurers. Yet despite this, some Catholic institutions are threatening to dump their health insurance, an act that may draw steep federal fines.

But since the church has shown alacrity before in separating legal issues and doctrinal ones when money's involved, following the law shouldn't really be a problem. Like always, it can just blame the lawyers.

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