The latest American Civil Liberties Union (ACLU) effort to impose its secular progressive values on religious institutions faltered this week.
San Francisco Superior Court Judge Ernest Goldsmith rejected the left-leaning group’s emergency motion to force a Northern California Catholic hospital to allow post-partum tubal ligation on a woman due to deliver her kid around January 28.
In his virtually unnoticed procedural ruling Tuesday Goldsmith said the ACLU should file a regular motion for an injunction against Dignity Health, according to the Court press office.
The ACLU of Northern California hopes to arrange a hearing next week for that purpose, says spokeswoman Leslie Fulbright.
Catholic teaching, of course, considers sterilization sinful.
Dignity Health, which runs the Mercy Medical Center in Redding, California, said in a statement to The Daily Caller that, “We are pleased by the court’s decision to deny the ACLU’s request for the [temporary restraining order] which will allow Dignity Health to continue to operate consistent with the [United States Catholic Bishops Conference] Ethical and Religious Directives for Catholic Health Care Services.”
Late last month, the ACLU sued Dignity on behalf of 33-year-old Rebecca Chamorro because they would not tie her tubes. Instead of just schlepping to another hospital 70 miles away for the procedure or opting for oral contraceptives of condoms in the interim, Chamorro claimed the hospital’s decision amounted to illegal gender discrimination under very broad California civil rights law.
This is sort of the gay wedding cake argument of fertility. The hospital is not denying entry to women. It just declines to offer a particular service.
More importantly, California law expressly allows hospitals to decline to provide abortion or sterilization services for religious or moral reasons.
And the 1973 Church Amendment, named for the late Senator Frank Church D-Idaho, expressly gives federally-funded hospitals, like Mercy Hospital, to decline to allow abortions or sterilization services for religious or moral reasons. University of Illinois law professor Robin Fretwell Wilson, an expert on religious liberties, tells TheDC that generally, “You can’t make them do it.”
But the ACLU just recently did.
In August, it threatened to sue Redding on behalf of another woman who wanted to have post-Caesarian sterilization. Staff attorney Elizabeth Gill argued rather disingenuously wrote Mercy executives that, “California law, however, does not permit a hospital supported by public funds to deny Ms. Miller’s medically indicated pregnancy-related care, as doing so constitutes sex discrimination.”
The hospital caved and allowed a private doctor to do the procedure. This kind of legal kneecapping seems like the ACLU’s approach with the current case also, says Wilson.
She agreed with her interviewer that the ACLU game plan here is similar to how businesses quite often illegally fire employees for unionizing, knowing full well it could take years before the National Labor Relations Bureau penalizes them.
If a state judge forced Mercy to allow Chamorro to have the procedure the hospital can not counter with a federal lawsuit under the Church Amendment. There is no right of private action.
The Obama Administration Health and Human Services Department would be responsible for enforcing the provision.
Good luck with that.
“The Feds need to have your back,” said Wilson. “HHS would take a long time” enforcing the law here.
Richard Mast of the religious liberties law firm Liberty Counsel says that the ACLU power play is particularly shameful because, “This [sterilization] is not life saving care. It is an elective procedure. It is pure convenience.”
He argues that, the ACLU’s demand that the hospital do something it considers sinful “is another example of the left’s war on the First Amendment” and could foreshadow efforts to force Catholic hospitals to perform abortions.
