The Role of Ethics Committees in Catholic Hospitals

1. The Role of Ethics Committees in Catholic Hospitals Leonard J. Nelson, III HEaL Conference Samford University April 13, 2012

2. Dual Role of Catholic Hospitals • Community Hospital open to all that receives most of its revenues from federal programs and private insurers • Religious Ministry with link to Diocesan Bishop and subject to Ethical and Religious Directives for Catholic Health Care Services (5th ed. 2009).

3. The Ethical and Religious Directives • In the 1970s, after Roe v. Wade was decided, it was feared that Catholic hospitals would be forced to provide abortions and sterilizations because of their receipt of federal funding under various programs. • In October of 1972 an injunction was issued by a U.S. District Court in Montana in a § 1983 action to require a Catholic hospital to permit a physician to perform a tubal ligation on a patient in the hospital. Taylor v. St. Vincent’s Hospital, Billings, MT, c-1090, U.S. District Court, Montana (October 27, 1972).

4. The Ethical and Religious Directives • Shortly after Roe v. Wade was decided, Congress adopted the Church Amendments, the original federal conscience protection laws to protect institutions with a conscientious objection from being forced to provide sterilizations and abortions because of their receipt of federal funds.

5. The Ethical and Religious Directives • The enactment of the Church Amendments facilitated the widespread adoption of the 1971 version of the Ethical and Religious Directives by United States bishops because in order to take advantage of their protections, it was necessary for Catholic hospitals to clearly articulate their moral objections to abortion and sterilization.

6. The Ethical and Religious Directives The Ethical and Religious Directives for Catholic Health Care Services is a set of norms adopted by the United States Conference of Catholic Bishops. They are now in their fifth edition and most recently revised in 2009.

7. The Ethical and Religious Directives Directive 5. Catholic health care services must adopt these Directives as policy, require adherence to them within the institution as a condition for medical privileges and employment, and provide appropriate instruction regarding the Directives for administration, medical and nursing staff, and other personnel. Ethical and Religious Directives for Catholic Health Care Services (5th ed. 2009) (hereinafter 2009 ERD)

8. Interpretation of the ERDs • In order to be binding on Catholic hospitals, the ERDS have to be adopted and promulgated by the local Bishop to be effective (all Bishops in US have adopted the ERDs) • Traditionally the Bishop is the one that is ultimately responsible for interpreting the ERDs • Some Catholic systems seem to be moving toward interpreting the ERDs themselves without regard to input from the local bishop

9. The Quinlan Case • In April 1975 when she was 21 years old, Karen Ann suffered severe brain damage as the result of anoxia. A tracheotomy was performed in the hospital and she was placed on a respirator. • Karen was also receiving ANH through a nasogastric tube. Her condition eventually was diagnosed as a persistent vegetative state. • Subsequently, her father sought court appointment as her guardian for the purpose of discontinuing “extraordinary medical treatment” (i.e., the respirator that she was on to assist her breathing). It was believed she would die rather quickly if use of the respirator was discontinued. • In re Quinlan, 355 A2d 647 (NJ 1976).

10. The Quinlan Case • Professor Burt notes: • The attending physician initially recommended discontinuing treatment and the family concurred, but he then told them that the hospital administrator and attorney had insisted on going to court for authorization • This was probably driven primarily by litigaphobia since this was at the time of the first malpractice crisis. • The fact that it was run by Catholic nuns does not provide an explanation for the hospital’s position since Catholic doctrine permitted the discontinuation of extraordinary treatment . • Robert A. Burt, Death Is a Man taking Names 68-69(California/Milbank 2002)

11. The Quinlan Case • Mr. Quinlan’s request to be appointed guardian was opposed by the treating physicians, the hospital, the local prosecutor, the State of New Jersey, and Karen’s guardian ad litem. • The trial court refused to appoint Mr. Quinlan as guardian of his daughter’s person or authorize removal of the respirator. • The Supreme Court of New Jersey reversed the trial court thereby authorizing the withdrawal of life support and the appointment of Mr. Quinlan as guardian for that purpose if it was concluded, after appropriate consultation with a hospital ethics committee, that there was no reasonable possibility of Karen ever emerging from a persistent vegetative state.

12. The Quinlan Case • The Quinlans were practicing Catholics and had been advised by the Catholic chaplain at the hospital and their parish priest that it would be permissible under Catholic teaching to discontinue the respirator. • The Supreme Court of New Jersey found that Catholic teaching was relevant insofar as the bore on the conscience of the proposed guardian. • The record included a statement by the local Catholic bishop that characterized the respirator as “extraordinary treatment,” and supported the position of Mr. Quinlan in his desire to discontinue the respirator.

13. The Quinlan Case • In Quinlan, the NJ Supreme court endorsed the use of hospital ethics committees in reviewing decisions to withdraw life-sustaining treatment as preferable to court proceedings. • It further concluded that the discontinuation of the respirator in this case would not result in criminal or civil liability. • After this decision, the respirator was removed but Karen Ann Quinlan was able to breathe on her own. She lived for several years being fed by ANH and died from an “overwhelming infection in 1985 without regaining consciousness.”

14. The Quinlan Case • Professor Burt recounts a conversation with Dr. Fred Plum, a Cornell Medical Professor who coined the term PVS. • Plum had concluded that Karen ANN would survive being taken off the respirator. At trial he testified that PVS patients like Karen didn’t usually live more than six months after diagnosis, but he wasn’t asked a follow up question as to why she was likely to die. • Plum told Burt that, if asked, he would have told the court that typically PVS patients would develop recurrent respiratory infections, and it was common at the time not to provide antibiotic treatment. Burt refers to this as “don’t ask, we won’t tell” social ethos. • Burt, supra at 15.

15. The Quinlan Case • Despite the expanded role for ethics committees envisioned in the Quinlan decision, initially growth was slow. • Cranford et al noted in a 1984 article that “the concept was not a success, and few hospitals created such committees.”[1] • The failure of hospitals to adopt ethics committees was attributed to a “reluctance to disturb the status quo, together with a sense of confusion over what an ethics committee could accomplish.”[2] • [1] Cranford RE, Doudera AE. The emergence of institutional ethics committees. Law Med Health Care.1984;12(1):13-20. • [2]Randal J. Are ethics committees alive and well?Hastings Cent Rep. 1983;13(6):10-12.

16. Ethics Committees • “In 1992, the Joint Commission on the Accreditation of Healthcare Organizations (JCAHO) passed a mandate that all its approved hospitals put in place a means for addressing ethical concerns. Although the particular process the hospital uses to address such concerns—ethics consultant, ethics forum, ethics committee—may vary, the hospital or healthcare ethics committee (HEC) is used most often. In a companion study to that reported here, we found that in 1998 over 90% of U.S. hospitals had ethics committees, compared to just 1% in 1983, and that many have some and a few have sweeping clinical powers in hospitals.” • Glenn McGee, et al., Successes and Failures of Hospital Ethics Committee: A National Survey of Ethics Committees Chairs, 11 Cambridge Q. of Healthcare Ethics 87-93 (2000).

17. Ethics Committees in Catholic Hospitals • Directive 37 provides: “An ethics committee or some alternate form of ethical consultation should be available to assist by advising on particular ethical situations, by offering educational opportunities, and by reviewing and recommending policies. To these ends, there should be appropriate standards for medical ethical consultation within a particular diocese that will respect the diocesan bishop’s pastoral responsibility as well as assist members of ethics committees to be familiar with Catholic medical ethics and, in particular, these Directives.” 2009 ERD

18. 2006 Survey • 2006 survey of hospital ethics committee (HEC) chairs and 261 CHA member hospitals about their perceptions and attitudes concerning HECs seeking to identify: • Primary functions of HECs • Who should serve on HECs • Successful strategies and obstacles to effective utilization of HECs • Whether HEC members should receive training • Frances Bernt et al, Ethics Committees in Catholic Hospitals: A New Study Assesses Their Role, Impact and Future in CHA-member Hospitals, 87 Health Progress 18 (2006).

19. 2006 Survey • Primary functions of HECs in CHA hospitals included: • Policy formation and review • Education of staff and public • Case consultation • Bernt et al, supra

20. 2006 Survey • Physicians and nurses constituted at least ½ of all HEC membership and women predominated • Little racial or ethnic diversity • Few HECs reported having psychologists or nutritionists on staff despite need for consultations dealing with patient competency and feeding tube issues • Bernt et al, supra

21. 2006 Survey • Problems: • Lack of visibility • Inadequate educational outreach • Lack of medical staff support-not taken seriously • Bernt et al, supra

22. 2006 Survey • 86% of CHEC chairs disfavored prerequisites as a requirement for HEC membership • Training is minimal for members, but about ½ of chairs have a graduate degree or certificate in bioethics • Seen as a “ ‘voluntary add on’ rather than a ‘important enough’ to require serious training” • Bernt et al, supra

23. Training of HEC Members • Ron Hamel, Senior Director of Ethics at CHA, argues that because HECs at CHA hospitals play an important role in ensuring adherence to Catholic teaching, there should be more emphasis on providing formal training for HEC members • Ron Hamel, Enhancing Ethics Committees in Catholic Health Care, 89 Health Progress 12 (2008).

24. Ethics Committees in Catholic Hospitals • “Capuchin Father Thomas Weinandy, executive director of the U.S. bishops’ Secretariat of Doctrine, told OSV that he was not aware of the 2006 survey, but was concerned over the apparent lack of standards. “It hardly seems logical that people are making decisions regarding Catholic ethics and morals if they have no training in it,” he said.  However, even when people do have training, and even degrees, that is no guarantee of accurate knowledge of the Catholic moral tradition. ‘Some of the ethicists that various Catholic health care institutions hire are really not fully in accord with Catholic moral theology,’ Father Weinandy said. ‘ The problem is that some have been trained in proportionalism, and that still can be part of their way in going about answering ethical dilemmas.’ ” • Ann Carey, Many hospital ethics boards out of touch with Church, OSV Newsweekly, Feb. 6, 2011, file:///C:/Users/ljnelson/Documents/Many%20hospital%20ethics%20boards%20out%20of%20touch%20with%20Church.htm

25. Ethics Committees in Catholic Hospitals • “David Belde, vice president for mission and ethics for Bon Secours Virginia HealthSource Inc., who has a doctorate in health care ethics from St. Louis University …[said] that the field of ethics has expanded rapidly in the past 15 to 20 years. This dynamic, evolving field lacks standardization, he said, and there is ongoing debate over what kind of training a person should have who wants the title ‘ethicist.’ Many people do ethics as a second career… and even an advanced degree in ethics does not mean that person has any training in moral theory. Belde said it’s important for ethics committees to have members with clinical experience, like nurses and doctors, but ethics committees in Catholic hospitals at least should also have access to a consultant who has a strong background in Catholic moral theology. …John Haas, a moral theologian who is president of the National Catholic Bioethics Center, confirmed that people serving on Catholic hospital ethics committees generally don’t have much training in ethics.” • Carey, supra.

26. Ethics Committees in Catholic Hospitals • “Joseph Piccione, a moral theologian who is senior vice president for mission and ethics at OSF Healthcare System based in Peoria, Ill., said it was very helpful for Catholic hospitals to have close communication with the diocesan bishop. In Peoria, a priest is the diocesan episcopal liaison for health care, and he works closely with the hospitals and the health system’s school of nursing, Piccione said. This relationship with the diocese ‘builds collegiality and communion,’ Piccione said. “You don’t get a sense the diocese is far away, but rather that we’re grappling with this together.”  • Carey, supra.

27. “The times they are a changin” • “In 2008, after a story by Ann Carey identified Catholic hospitals in Texas that were performing direct sterilizations, Bishop Corrada of Tyler, Texas, insisted that those hospitals stop performing direct sterilizations, and one hospital challenged his interpretation of the ERDs. In 2010, Bishop Robert Vasa revoked his recognition of St. Charles Hospital in Bend, Oregon as a Catholic hospital, after he determined the hospital was providing direct sterilizations. In 2010, Bishop Olmsted revoked his recognition of St. Joseph’s Hospital in Phoenix, Arizona, as a Catholic hospital because of its continuing non-compliance with the ERDS prohibitions on direct abortions and direct sterilizations. Subsequently, Catholic Healthcare West, the owner of St. Joseph’s Hospital, a 40 hospital Catholic system, decided to drop its Catholic affiliation to facilitate mergers with non-Catholic entities. And a recent dissertation by Sandra Hapenney, a Doctoral candidate at Baylor University, found that based on her analysis of data from the National Center for Health Statistics, 48 percent of the 176 Catholic hospitals that she studied with obstetrical services were performing direct sterilizations.” • Leonard Nelson, The New York Times v. Catholic Hospitals, NRO, http://www.nationalreview.com/corner/291899/inew-york-timesi-and-catholic-hospitals-leonard-j-nelson-iii

28. “The times they are a changin” • Catholic hospitals in Belgium are now providing voluntary euthanasia for their patients. • This practice has been erroneously defended as being consistent with Catholic teaching. • Ana Ilitis, Euthanasia in Catholic Hospitals,12 Christian Bioethics 281 (2006); C. Gastmans, et al., Pluralism and Ethical Dialogue in Christian Healthcare Institutions, 12 Christian Bioethics 265 (2006)

29. Two Case Studies • Therapeutic Abortion- The Phoenix Case • End-of-Life care -Adoption of new Directive 58

30. Abortion • Directive no. 45 states: “Abortion (that is, the directly intended termination of pregnancy before viability or the directly intended destruction of a viable fetus) is never permitted. Every procedure whose sole immediate effect is the termination of pregnancy before viability is an abortion, which, in its moral context, includes the interval between conception and implantation of the embryo.”

31. Abortion • Directive 47 provides: “Operations, treatments, and medications that have as their direct purpose the cure of a proportionately serious pathological condition of a pregnant woman are permitted when they cannot be safely postponed until the unborn child is viable, even if they will result in the death of the unborn child.”

32. Case Study :The Phoenix Case • “In the fall of 2009, a 27-year-old woman with four children was admitted to St. Joseph Hospital and Medical Center in Phoenix, Ariz., because of her worsening symptoms of pulmonary hypertension. Knowing that she was about ten weeks pregnant, doctors advised her that the safest course was to terminate the pregnancy, but she rejected this proposal. The fact that she chose a Catholic hospital for treatment suggests that she did not want an abortion. As the woman’s condition deteriorated, a cardiac catheterization revealed that she suffered from ‘very severe pulmonary arterial hypertension with profoundly reduced cardiac output’ and ‘right heart failure’ and ‘cardiogenic shock,’ according to report later compiled by the hospital’s ethics committee. In other words, the medical staff believed that both mother and child would die if the present situation were allowed to continue. Thus, termination of the pregnancy was recommended and agreed to by the mother. Because of her serious condition, she could not be moved to another hospital.” • Kevin O’Rourke, What Happened in Phoenix, America, Jun. 21, 2010

33. The Phoenix Case • The case was sent to the Ethics Committee at St. Joseph’s and it approved termination of the pregnancy. • In May 2010, Bishop Olmsted of Phoenix announced that Sister Margaret Mary McBride, a member of the Ethics Committee at St. Joseph’s, Vice President for Mission Integration, and a Sister of Mercy, had excommunicated herself by her participation in the approval of the abortion. • Statements from Diocese of Phoenix and St. Joseph’s , Arizona Republic, May 15, 2010, http://www.azcentral.com/community/phoenix/articles/2010/05/14/20100514stjoseph0515bishop.html

34. The Phoenix Case “On the day Phoenix Bishop Thomas J. Olmsted declared St. Joseph's Hospital and Medical Center can no longer call itself Catholic, hospital officials vowed to provide patient care the way they always have, saying they could not ethically and legally comply with the bishop's demands. Both sides on Tuesday insisted their interpretation of a case that involved a pregnancy terminated at the hospital was correct. Olmsted declared the procedure an abortion barred by Catholic teaching, while hospital officials insisted the surgery was appropriate under church guidelines that allow certain exceptions for saving a mother's life.” • Michael Clancy, Phoenix Diocese Strips St. Joseph's Hospital of Catholic Status, Arizona Republic, Dec. 21, 2010, http://www.azcentral.com/community/phoenix/articles/2010/12/21/20101221phoenix-diocese-strips-st-josephs-hospital-catholic-status.html

35. The Phoenix Case • For Catholic healthcare institutions the question of whether a particular procedure is morally licit in a difficult case is precisely the sort of question that ought to be brought to a Bishop.  • It is the bishop's responsibility to interpret the ERDs and make authoritative interpretations of the moral law after determining the facts. • The interpretation and application of the ERDs in difficult cases should be done in dialogue with the Bishop or the Bishop’s representative.

36. The Phoenix Case • “CHW’s response to Bishop Olmsted’s decree ..: They rejected any implication of wrongdoing with respect to the abortion, and indicated that they would not change any of their policies, operations or procedures. Moreover, the Catholic Health Association (CHA) issued a press release with a statement by its CEO, Daughter of Charity Sister Carol Keehan, supporting St. Joseph’s action and characterizing the abortion as permissible.” • Leonard Nelson, Hospital’s Dangerous Precedent, OSV Newsweekly, Jan. 2009 

37. The Phoenix Case • “The high-profile clash between the Catholic Health Association and the U.S. bishops has seemingly come to an end, with the two sides pledging to collaborate on efforts in Catholic health care.  Sister Carol Keehan, a Daughter of Charity and president of the CHA, issued a letter to New York Archbishop Timothy Dolan, president of the U.S. Conference of Catholic Bishops, stating that the CHA firmly supports the role of a local bishop as authentic interpreter of the Ethical and Religious Directives for Catholic Health Care Services (ERDs).” • Scott Alessi,CHA Affirms bishops' Role in Health Care Rules, But..., OSV Newsweekly, Feb. 2011

38. The Phoenix Case • “Sister Keehan told America that she was not aware that the U.S.C.C.B. intended to release the exchange of letters to the public and ‘write a story about it,’ that her understanding was the exchange was intended for distribution within the conference. She reiterated the main theme of her letter to Dolan, that the C.H.A. has never challenged a local bishop’s right to interpret or address ethical and religious directives within his diocese. ‘The C.H.A. has said and has always said that a bishop in his local diocese has the right to promulgate [the directives] and to interpret the E.R.D.s.,’ Sister Keehan said. ‘He can even write his own E.R.D.s if he wants.’ • Kevin Clarke, CHA and USCCB: Making Up Is Hard to Do?,America Magazine, Feb. 1, 2011, http://www.americamagazine.org/blog/entry.cfm?entry_id=3861

39. The Phoenix Case • “Sister Keehan said she acknowledged the right of Bishop Olmsted to “kick them out of the diocese,” but said she, like many Catholic theologians, still believed St. Joseph administrators were properly following Catholic directives in the difficult decision. The hospital remains a C.H.A. member institution.” • Kevin Clarke, CHA and USCCB: Making Up Is Hard to Do?,America Magazine, Feb. 1, 2011, http://www.americamagazine.org/blog/entry.cfm?entry_id=3861

40. Phoenix Case • “The difference can be seen in two different scenarios in which the unborn child is not yet old enough to survive outside the womb. In the first scenario, a pregnant woman is experiencing problems with one or more of her organs, apparently as a result of the added burden of pregnancy. The doctor recommends an abortion to protect the health of the woman. In the second scenario, a pregnant woman develops cancer in her uterus. The doctor recommends surgery to remove the cancerous uterus as the only way to prevent the spread of the cancer. Removing the uterus will also lead to the death of the unborn child, who cannot survive at this point outside the uterus. As the Church has said many times, direct abortion is never permissible because a good end cannot justify an evil means.” • THE DISTINCTION BETWEEN DIRECT ABORTION AND LEGITIMATE MEDICAL PROCEDURES, USCCB Committee on Doctrine, June 23, 2010, http://www.lifesitenews.com/ldn/2010_docs/Phoenix_abortion.pdf

41. Phoenix Case • “The first scenario describes a direct abortion. The surgery directly targets the life of the unborn child. It is the surgical instrument in the hands of the doctor that causes the child's death. The surgery does not directly address the health problem of the woman, for example, by repairing the organ that is malfunctioning. The surgery is likely to improve the functioning of the organ or organs, but only in an indirect way, i.e., by lessening the overall demands placed upon the organ or organs, since the burden posed by the pregnancy will be removed. The abortion is the means by which a reduced strain upon the organ or organs is achieved.” • USCCB Committee on Doctrine,

42. The Phoenix Case • “The second scenario describes a situation in which an urgently-needed medical procedure indirectly and unintentionally (although foreseeably) results in the death of an unborn child. In this case the surgery directly addresses the health problem of the woman, i.e., the organ that is malfunctioning (the cancerous uterus). The woman's health benefits directly from the surgery, because of the removal of the cancerous organ. The surgery does not directly target the life of the unborn child. The child will not be able to live long after the uterus is removed from the woman's body, but the death of the child is an unintended and unavoidable side effect and not the aim of the surgery. There is nothing intrinsically wrong with surgery to remove a malfunctioning organ.” • USCCB Committee on Doctrine

43. The Phoenix Case • There is a continuing debate about whether a broad life of the mother exception should be accepted as being consistent with Catholic teaching. John Noonan has noted in an essay that a life of the mother exception was once accepted in the Church. He states: “Even with the fetus weighed as human, one interest could be weighed as equal or superior: that of the mother in her own life. The casuists between 1450 and 1895 were willing to weigh this interest as superior. Since 1895, that interest was given decisive weight only in the two special cases of the cancerous uterus and the ectopic pregnancy. In both of these cases the fetus itself had little chance of survival even if the abortion were not performed. As the balance was once struck in favor of the mother whenever her life was endangered, it could be so struck again. The balance reached between 1895 and 1930 attempted prudentially and pastorally to forestall a multitude of exceptions for interests less than life.” • John T. Noonan, Jr., An Almost Absolute Value in History, The Morality of Abortion: Legal and Historical Perspectives 51-59, ( John T. Noonan, Jr. ed., Harvard University Press 1970).

44. The Phoenix Case • “Since the placenta is located in the uterus, perhaps it would have been more accurate for the ethics committee to designate that organ as pathological and thus compel its removal. The committee might have also investigated more closely the work of the moral theologian Germain Grisez, who has argued that the principle of double effect applies to cases in which both mother and child would die if the infant is not delivered prematurely.” • O’Rourke, supra.

45. The Phoenix Case • A recent book by Father Martin Rhonheimer, a Swiss theologian and Opus Dei priest, that was published at the request of the Congregation for the Doctrine of the Faith, argues that in tragic situations where both mother and child will die (e.g., craniotomy or salpingotomy) it may be morally permissible to terminate a pregnancy to save the life of the mother. He argues that in these cases the termination of the pregnancy is equivalent to an indirect abortion. He also notes that in such cases of “vital conflict” there is no weighing of lives because only one life, i.e. the mother's, can be saved.  • Martin Rhonheimer, Vital Conflicts in Medical Ethics: A Virtue Approach to Craniotomy and Tubal Pregnancies (CUA Press 2009).

46. The Phoenix Case • In an article in America, Father Kevin O’Rourke defends the approach taken by the hospital, and defends of actions by Sister Carol Keehan in supporting the hospital against the Bishop, noting: • “The medical team at St. Joseph Hospital made its decision based on a judgment that both mother and child would die unless action were taken to remove the cause of the underlying medical problem. It seems that preserving the life of the mother was the intention of the act because the infant would die no matter what was done or not done. Its death during the surgery was foreseen but not intended and so a non-direct abortion. There are responsible Catholic theologians and medical personnel who maintain that in these circumstances (including an inability to save the infant from eventual death), the principle of self-defense justifies removing the fetus from the mother’s womb.” • Kevin O’Rourke, Rights of Conscience, America, Aug. 1, 2011, http://www.americamagazine.org/content/article.cfm?article_id=12965.

47. EMTALA: The ACLU • “… the Bishop’s drastic and heavy-handed actions send a chilling message to Catholic hospitals throughout the country, as well as their employees: If hospitals comply with federal law and provide emergency abortion care there will be consequences. This will have a profound affect on care, and will particularly impact hospitals and medical centers that may rely heavily on their local diocese for financing and other resources. The dioceses cannot be permitted to dictate who lives and who dies in Catholic-owned hospitals. As we stated in our previous letter, religiously affiliated hospitals are not exempt from complying with EMTALA and the COP [Medicare and Medicaid Conditions of Participation}, and cannot invoke their religious status to jeopardize the health and lives of pregnant women seeking medical care. To the contrary, these federal laws protect patients’ right to receive emergency reproductive health care.” • ACLU Letter to CMS, Dec. 21, 2010, http://www.aclu.org/files/assets/EMTALA-_ACLU_CMS_Follow_Up_Letter-St__Joseph-_12-22-2010_FINAL.pdf

48. EMTALA: USCCB Response • “Is EMTALA (Emergency Medical Treatment and Active Labor Act) currently a problem? No. It clearly states that health care personnel must respond to an emergency in which a pregnant woman or "her unborn child" is in distress, and should stabilize the condition of both .It is absurd to interpret the deliberate killing of the unborn child as "stabilizing" her condition, though abortion advocates have tried to do so. Thus no one has found a case in which EMTALA was enforced against anyone for not performing an abortion. The Obama administration has also reaffirmed that there is no conflict between EMTALA and conscience laws such as Hyde/Weldon: ‘The conscience laws and the other federal statues have operated side by side often for many decades. As repeals by implication are disfavored and laws are meant to be read in harmony, the Department fully intends to continue to enforce all the laws it has been charged with administering…. [E]ntities must continue to comply with their… EMTALA… obligations, as well as the federal health care provider conscience protection statutes.’" • USCCB, Fact Sheet: Emergency Services and the Protect Life Act, http://usccb.org/issues-and-action/religious-liberty/conscience-protection/fact-sheet-emergency-services-protect-life-act.cfm

49. EMTALA • Rev. John Tuohey notes the potential problems for Catholic Hospitals under EMTALA in cases where there is a conflict between the free exercise of religion and the mother’s life and argues that Catholic hospitals should self-impose limits on the exercise religious freedom to save the life of the mother, safeguard the rights of citizens and peacefully settle the conflict of rights. • John F. Tuohey, A Fatal Conflict: Can Catholic Hospitals Refuse to Save Lifes, Commonweal, Jan. 28, 2011.

50. Case Study: Directive 58 • The Catholic natural law tradition distinguishing between ordinary and extraordinary treatment dates back to the sixteenth century. In recent years it has become more common to replace the terms “ordinary” and extraordinary with the terms “proportionate” and “disproportionate” care Ronald Hamel & Michael Panicola, Must We Preserve Life?, America 6, 7 (April 19-26, 2004).