After hearing about 30 minutes of oral arguments on Feb. 14 over whether he should dismiss or delay a landmark lawsuit from the California Attorney General’s Office alleging St. Joseph Hospital violated state law when it refused to provide a medically necessary abortion, Humboldt County Superior Court Judge Timothy Canning took the matter under submission, saying he’ll issue a written ruling within 90 days.
Filed in September, the lawsuit alleges the hospital broke California’s Emergency Services Law (ESL) by refusing to provide an abortion that doctors deemed medically necessary in an unviable pregnancy because a fetal heartbeat could still be detected, putting the mother’s life and health in danger. Attorneys for Providence St. Joseph filed a demurrer in December, asking the case be dismissed, or at least delayed, and arguing that state law requires the California Department of Public Health (CDPH) to review alleged violations of the ESL and that requiring religious hospitals to provide abortion services when there is a detectable fetal heartbeat would amount to a violation of its religious protections under the First Amendment.
On Feb. 14, in front of a courtroom in which every seat was filled and a handful of people watched standing in the aisle, attorneys on both sides of the issue summed up their arguments for Canning’s consideration.
Representing Providence St. Joseph Health, Harvey Rochman said the “elephant in the room” here is that the Attorney General’s Office does not have a single case it can point to in which a court required a Catholic hospital to provide abortion services against its policy.
Further, Rochman said the ESL itself identifies the CDPH as the primary authority to investigate and determine potential violations, and to penalize hospitals where appropriate. Rochman added that’s because the department has “experience” and “expertise” navigating such issues, urging Canning to at least delay the civil case until CDPH can investigate and he can “benefit” from its findings.
Rochman then turned to the facts of the case, particularly the allegation that when St. Joseph Hospital discharged Anna Nusslock to be transported to Mad River Community Hospital, it did so for non-medical reasons. Specifically, the lawsuit alleges that after Nusslock arrived at St. Joseph Hospital after her water broke 15 weeks into her pregnancy with twins, a doctor told her the fetuses would not survive and terminating the pregnancy was necessary but, because fetal heart tones could still be detected, hospital policy would not allow the procedure to be performed there. Nusslock alleges it was then arranged for her to have the procedure at Mad River and a nurse gave her a bucket and some towels “in case something happens in the car” as she was driven there.
Rochman said Nusslock was obviously transferred to Mad River for medical reasons because she was sent there to receive medical care. The reason why that care could not be provided at St. Joseph, he said, is a separate matter, likening it to a hospital being unable to perform a heart surgery due to a lack of equipment on hand.
“The reason is to get heart surgery,” Rochman said of the hypothetical transfer, saying the fact that the hospital didn’t budget properly for the necessary equipment doesn’t negate that the patient was transferred for medical reasons.
Rochman then argued that the lawsuit’s allegation that the hospital’s policy amounts to discrimination against pregnant people is off base, saying it provides care to “100s of pregnant people all the time.” It was Nusslock’s “alleged need for an abortion when there’s a fetal heartbeat” that resulted in her being transferred, not her status as a pregnant woman protected under the law.
Ultimately, Rochman argued St. Joseph Hospital has a First Amendment right to implement policies in line with its religious beliefs, and not to perform procedures deemed in conflict with those policies.
“Religious rights have the same significance of the secular,” he said.
When it came time for plaintiffs in the case to respond, Supervising Deputy Attorney General Martine D’Agostino cast the case in general terms.
“This is a case about emergency medical care,” she said. “The people of Humboldt County were denied that care at great risk to their lives.”
D’Agostino then argued against St. Joseph Hospital’s assertion that the matter should be handled by CDPH before a pair of her colleagues rebutted other aspects of Rochman’s arguments.
The ESL, D’Agostino said, clearly allows other state agencies — including the Attorney General’s Office — to take regulatory action to enforce its provisions. D’Agostino argued that in this particular case, there is no “experience” or “expertise” CDPH could lend the issue that would change the fundamental questions. Further, she argued, halting proceedings to allow for CDPH to investigate and issue findings would simply amount to an undue delay, which would allow St. Joseph’s abortion policy to remain in place and present “a grave risk to the very lives of the women of Humboldt County.”
Deputy Attorney General Katelyn Wallace took on the argument that Nusslock was transferred for medical purposes. By nature, Wallace said, a transferred patient is going to be treated at the receiving hospital, but that doesn’t mean the transfer itself was for medical purposes. And while a hospital not having the staffing, equipment or expertise to provide care for a patient might require them to be transferred for medical purposes, this is a case of a hospital using an ideological policy as a reason not to provide a procedure it was otherwise fully equipped to provide.
“No medical reason existed not to provide care to Ms. Nusslock,” Wallace said.
Deputy Attorney General David Houska then took on the discrimination and First Amendment argument, noting there’s recent case law supporting the notion that religious organizations are required to follow the law even when they find it objectionable.
On the question of whether St. Joseph’s policy amounts to discrimination against pregnant women, Houska argued it does. While it’s true the hospital provides an assortment of care to pregnant women on a regular basis, their emergency care is treated differently than that of other patients.
While all other patients who arrive at St. Joseph Hospital in need of emergency medical care receive it based on the judgement of their doctor, Houska said pregnant patients in certain emergency situations see their care “micro-managed … by hospital administrators.”
And this cuts to the core of the ESL, Houska said.
“This is the purpose of the law,” he said. “The purpose of the law is to make sure every Californian receives medical care when they need it, when it is emergent.”
When the matter came back to the defendants for a rebuttal, Rochman reiterated his belief that it’s CDPH that is in the best position to tackle allegations and complaints like this, saying it has the expertise to navigate the line between the religious and secular and find an outcome that works for the community.
He further noted that while the AG’s Office has made a point of mentioning in filings that Mad River Community Hospital’s labor and delivery unit has shuttered since Nusslock was treated there, adding urgency to addressing St. Joseph Hospital’s policy, it’s St. Joseph’s religious “mission” that keeps its labor and delivery unit open even when it may not be profitable.
“They are in fact on a mission,” he said, saying it’s impossible to separate the hospital’s operations from the religious beliefs that inspire them.
Canning took the matter under submission. He has up to 90 days to issue a written ruling.
Thadeus Greenson (he/him) is the Journal’s news editor. Reach him at (707) 442-1400, extension 321, or thad@northcoastjournal.com.
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