By John Tomasic
The Colorado Independent
Wednesday, January 23, 2013 at 8:54 am
|[ Image by Mark Coggins via Flickr ]
The lead defendant in the case is Catholic Health Initiatives, the Englewood-based nonprofit that runs St. Thomas More Hospital as well as roughly 170 other health facilities in 17 states. Last year, the hospital chain reported national assets of $15 billion. The organization’s mission, according to its promotional literature, is to “nurture the healing ministry of the Church” and to be guided by “fidelity to the Gospel.” Toward those ends, Catholic Health facilities seek to follow the Ethical and Religious Directives of the Catholic Church authored by the U.S. Conference of Catholic Bishops. Those rules have stirred controversy for decades, mainly for forbidding non-natural birth control and abortions. “Catholic health care ministry witnesses to the sanctity of life ‘from the moment of conception until death,’” the directives state. “The Church’s defense of life encompasses the unborn.”
The directives can complicate business deals for Catholic Health, as they can for other Catholic health care providers, partly by spurring political resistance. In 2011, the Kentucky attorney general and governor nixed a plan in which Catholic Health sought to merge with and ultimately gain control of publicly funded hospitals in Louisville. The officials were reacting to citizen concerns that access to reproductive and end-of-life services would be curtailed. According to The Denver Post, similar fears slowed the Sisters of Charity of Leavenworth’s plan over the last few years to buy out Exempla Lutheran Medical Center and Exempla Good Samaritan Medical Center in the Denver metro area.
But when it came to mounting a defense in the Stodghill case, Catholic Health’s lawyers effectively turned the Church directives on their head. Catholic organizations have for decades fought to change federal and state laws that fail to protect “unborn persons,” and Catholic Health’s lawyers in this case had the chance to set precedent bolstering anti-abortion legal arguments. Instead, they are arguing state law protects doctors from liability concerning unborn fetuses on grounds that those fetuses are not persons with legal rights.
As Jason Langley, an attorney with Denver-based Kennedy Childs, argued in one of the briefs he filed for the defense, the court “should not overturn the long-standing rule in Colorado that the term ‘person,’ as is used in the Wrongful Death Act, encompasses only individuals born alive. Colorado state courts define ‘person’ under the Act to include only those born alive. Therefore Plaintiffs cannot maintain wrongful death claims based on two unborn fetuses.”
The Catholic Health attorneys have so far won decisions from Fremont County District Court Judge David M. Thorson and now-retired Colorado Court of Appeals Judge Arthur Roy.
In September, the Stodghills’ Aspen-based attorney Beth Krulewitch working with Denver-based attorney Dan Gerash appealed the case to the state Supreme Court. In their petition they argued that Judges Thorson and Roy overlooked key facts and set bad legal precedent that would open loopholes in Colorado’s malpractice law, relieving doctors of responsibility to patients whose viable fetuses are at risk.
Whether the high court decides to take the case, kick it back down to the appellate court for a second review or accept the decisions as they stand, the details of the arguments the lawyers involved have already mounted will likely renew debate about Church health care directives and trigger sharp reaction from activists on both sides of the debate looking to underline the apparent hypocrisy of Catholic Health’s defense.
At press time, Catholic Health did not return messages seeking comment. The Stodghills’ attorneys declined to comment while the case was still being considered for appeal.
The Supreme Court is set to decide whether to take the case in the next few weeks.