Amicus Curiae Brief — Dignity Health, dba Mercy San Juan Medical Center, Petitioner v. Evan Minton

NO.19-1135

IN THE

Supreme Court of the United States

____________________________

DIGNITY HEALTH D/B/A MERCY SAN JUAN MEDICAL

CENTER,

Petitioner,

v.

EVAN MINTON,

____________________________

Respondent.

On Petition for Writ of Certiorari to the

California Court of Appeal,

First Appellate District

____________________________

BRIEF OF AMICI CURIAE CATHOLIC

MEDICAL ASSOCIATION AND THE

NATIONAL CATHOLIC BIOETHICS CENTER

IN SUPPORT OF PETITIONER

____________________________

CHRISTOPHER P. SCHANDEVEL

ALLIANCE DEFENDING

FREEDOM

20116 Ashbrook Place

Suite 250

Ashburn, VA 20147

(571) 707-4655

cschandevel@ADFlegal.org

JOHN J. BURSCH

Counsel of Record

ALLIANCE DEFENDING

FREEDOM

440 First Street NW

Suite 600

Washington, DC 20001

(616) 450-4235

jbursch@ADFlegal.org

Counsel for Amici Curiae

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... ii

INTEREST OF AMICI CURIAE ............................... 1

SUMMARY OF THE ARGUMENT ........................... 2

ARGUMENT .............................................................. 3

I.

As applied below, California’s Unruh Act

cannot survive strict scrutiny. ............................ 3

A. Properly defined, no compelling state

interest justifies forcing Mercy to violate

patient-neutral, religious ethical rules. ....... 3

B. The Catholic Church’s Ethical and

Religious Directives prohibit elective

sterilizations and are patient neutral. ......... 8

II. The ecclesiastical abstention doctrine shields

religious hospitals from state interference

with their faith and mission. ............................. 10

III. The federal Church Amendment preempts the

claim that patients can force religious

hospitals to perform elective sterilizations....... 16

CONCLUSION ......................................................... 19

ii

TABLE OF AUTHORITIES

Cases

Arizona v. United States,

567 U.S. 387 (2012) .............................................. 17

Elvig v. Calvin Presbyterian Church,

375 F.3d 951 (9th Cir. 2004) ................................ 13

Employment Division, Department of Human

Resources of Oregon v. Smith,

494 U.S. 872 (1990) ................................................. i

Fisher v. University of Texas at Austin,

570 U.S. 297 (2013) ............................................ 4, 5

Fulton v. City of Philadelphia,

922 F.3d 140 (3d Cir. 2019) ............................... 4, 7

Hosanna-Tabor Evangelical Lutheran Church &

School v. E.E.O.C.,

565 U.S. 171 (2012) ........................................ 11, 13

Kedroff v. St. Nicholas Cathedral of Russian

Orthodox Church in North America,

344 U.S. 94 (1952) ......................................... passim

Means v. United States Conference of Catholic

Bishops,

2015 WL 3970046 (W.D. Mich. 2015)............ 15, 16

Means v. United States Conference of Catholic

Bishops,

836 F.3d 643 (6th Cir. 2016) ................................ 15

New Hope Family Services, Inc. v. Poole,

387 F. Supp. 3d 194 (N.D.N.Y. 2019) .................... 5

Rweyemamu v. Cote,

520 F.3d 198 (2d Cir. 2008) ................................. 13

iii

Trinity Lutheran Church of Columbia, Inc. v. Comer,

137 S. Ct. 2012 (2017) .......................................... 11

Watkins v. Mercy Medical Center,

364 F. Supp. 799 (D. Idaho 1973) ........................ 18

Watkins v. Mercy Medical Center,

520 F.2d 894 (9th Cir. 1975) ................................ 18

Watson v. Jones,

80 U.S. 679 (1871) .......................................... 11, 12

Statutes

42 U.S.C. 300a-7(b) ........................................ 2, 16, 17

Other Authorities

Congregation for the Doctrine of the Faith,

Responses to Questions Proposed Concerning

“Uterine Isolation” and Related Matters (July

31, 1993), https://perma.cc/M5Y4-JAZT ......... 9, 10

Matthew D. Bunker, et al., Strict in Theory, but

Feeble in Fact? First Amendment Strict

Scrutiny and the Protection of Speech,

16 COMM. L. & POL’Y 349 (2011) ............................ 6

Paul VI, Pope, Humanae Vitae (Encyclical Letter

on the Regulation of Birth), July 25, 1968,

https://perma.cc/72W2-23TQ ............................... 14

Russell W. Galloway, Means-End Scrutiny in

American Constitutional Law,

21 LOY. L.A. L. REV. 449 (1988) ............................. 6

USCCB, ETHICAL AND RELIGIOUS DIRECTIVES FOR

CATHOLIC HEALTH CARE SERVICES (5th ed.

2009), https://perma.cc/JF47-7357 .............. 8, 9, 10

1

INTEREST OF AMICI CURIAE1

The Catholic Medical Association is the largest

association of Catholic individuals in healthcare.

With over 2,000 physicians and hundreds of allied

health members nationwide, the Association and its

members seek to uphold the principles of the Catholic

faith in the science and practice of medicine—

including protecting conscience rights and religious

freedoms for every person and religious entity. The

issues presented in this case and others like it will

significantly impact Catholic hospitals throughout

the country as they confront potential conflicts

between the demands of a small minority of patients,

the hospitals’ obligation to follow the Catholic

Church’s Ethical and Religious Directives, and their

commitment to offering principled, life-affirming

healthcare to the millions of Americans who seek out

conscience-driven, religious healthcare providers.

The National Catholic Bioethics Center is a

nationally and internationally recognized educational

institute committed to applying the moral teachings

of the Catholic Church to ethical issues arising in

healthcare and the life sciences. Through its

individual and corporate memberships, it represents

thousands of healthcare providers, sponsors, and

recipients of healthcare who are impacted by

regulatory policies that prevent providers from

offering care consistent with the best interests of the

patient, patient consent, and religious liberty.

1 No party other than the amici and their counsel authored any

part of this brief or gave money to fund its preparation or

submission. Counsel for both parties were timely notified of this

filing as required by Supreme Court Rule 37.2, and both parties

consented to the filing of this brief.

2

SUMMARY OF THE ARGUMENT

The California Court of Appeal held that Dignity

Health could be held liable for allowing Mercy, one of

its Catholic hospitals, to follow the Catholic Church’s

Ethical and Religious Directives. The Court should

grant the petition and reverse for three reasons.

First, California does not have a compelling state

interest in forcing religious hospitals to perform

elective sterilizations in violation of their religious

beliefs and their Church’s teachings. In recent years,

courts have been prone to define state interests in the

broadest terms possible to justify trampling on First

Amendment freedoms. This Court should grant the

petition and put an end to that dangerous practice.

Second, the Court should make clear that courts

must abstain from disputes over ecclesiastical matters like those here. Religious organizations must be

free to “decide for themselves” issues of “faith and doctrine.” Kedroff v. St. Nicholas Cathedral of Russian

Orthodox Church in N. Am., 344 U.S. 94, 116 (1952).

This dispute is inextricably intertwined with the

Catholic Church’s tenets for Catholic hospitals, and

civil courts may not pass judgment on them.

Third, federal law preempts any possible claim

under California’s Unruh Act. The federal Church

Amendment prohibits “any court or any public official

or other public authority” from requiring a healthcare

entity to “make its facilities available for the performance of any sterilization procedure . . . if the

performance of such procedure . . . in such facilities is

prohibited by the entity on the basis of religious

beliefs or moral convictions.” 42 U.S.C. 300a-7(b).

Those are precisely the circumstances present here,

and they warrant summary reversal.

3

ARGUMENT

I.

As applied below, California’s Unruh Act

cannot survive strict scrutiny.

A. Properly defined, no compelling state

interest justifies forcing Mercy to violate

patient-neutral, religious ethical rules.

This Court recently granted certiorari to

determine whether Employment Division v. Smith

should be “revisited” and “reconsidered.” Pet. for Writ

of Cert. at i, 18, Fulton v. City of Philadelphia, No. 19123 (cert. granted Feb. 24, 2020). Like the petitioner

here, amici agree with the petitioner in Fulton that

“the Court that decided Smith could not have

envisioned that Smith would be used” to allow

governments to shutter century-old ministries over

disagreements about issues of faith. Pet. for Writ of

Cert. at 36–37 (quoting Fulton Pet. at 31–32).

But merely “revisiting” Smith may not be enough

to keep these ministries open in states and localities

where government officials are determined to close

them—and where courts are quick to bless those

efforts. This case proves it. The California Court of

Appeal held that the state supreme court had already

“soundly rejected” Mercy’s arguments by holding

“that any burden the Unruh Act places on the exercise

of religion is justified by California’s compelling

interest in ensuring full and equal access to medical

treatment for all its residents, and that there are no

less restrictive means available for the state to

achieve that goal.” App.15. Full stop. No additional

analysis required.

4

“Strict scrutiny must not be strict in theory but

feeble in fact.” Fisher v. Univ. of Texas at Austin, 570

U.S. 297, 314 (2013). But if the state’s interest in

“ensuring full and equal access to medical treatment”

is sufficient to trump “any burden . . . on the exercise

of religion,” then laws like California’s that trample

on religious providers’ free-exercise rights will

survive every time. And “strict” scrutiny will continue

to be anything but.

That is especially obvious here considering that

the full scope of the alleged denial of “full and equal

access” was a mere three-day delay in performing the

procedure, which Minton’s own doctor performed at a

different, non-Catholic hospital also operated by

Dignity Health. Pet. at 10. To the court below,

cancelling the surgery for any duration undermined

California’s “compelling interest in ensuring full and

equal access to medical treatment,” and Dignity

Health’s act of “remedying [the alleged injury] after it

[had] occurred” made no difference. App.14–15.

Similarly in Fulton, the Third Circuit rejected

Catholic Social Services’ arguments under the state’s

Religious Freedom Protection Act by holding that,

“even if CSS could show a substantial burden on its

religious exercise as defined by the RFPA, the City’s

actions appear[ed] to survive strict scrutiny.” Fulton

v. City of Philadelphia, 922 F.3d 140, 164 (3d Cir.

2019). This was true despite that “no same-sex

couples [had] ever—so far as the record reflect[ed]—

approached [CSS] seeking to become foster parents.”

Ibid. To the Third Circuit, the absence of actual harm

to same-sex couples was “not surprising” and “beside

the point.” Ibid.

5

Just last year, a federal district court in New York

was equally quick to dismiss a Christian adoption

agency’s claim that the state had violated its First

Amendment rights by forcing it to place children with

same-sex and unmarried couples or shut down. In

New Hope Family Services, Inc. v. Poole, the district

court held that “the state’s compelling interest in

prohibiting the discrimination at issue [t]here far

exceed[ed] any harm to New Hope’s expressive

association.” 387 F. Supp. 3d 194, 219–20 (N.D.N.Y.

2019). And that was true even though New Hope

referred same-sex and unmarried couples to other

providers and, as a result, had “never denied an

unmarried couple or same-sex couple’s application.”

Id. at 204.2

Each of these cases demonstrates a simple truth:

requiring courts to apply strict scrutiny to all freeexercise claims will not offer meaningful protection to

religious providers like Mercy, CSS, and New Hope if

that analysis remains “strict in theory but feeble in

fact.” Fisher 570 U.S. at 314. An analysis that simply

accepts every government justification to force individuals and organizations to violate their religious

beliefs is just as bad—if not worse—than a regime

where religious interests always lose under Smith.

The Court should grant the petition here and

make clear that “strict” means “strict.” Or the Court

should make the same clear in Fulton and, as the

petitioner suggests, hold the petition here pending

the Court’s decision there. Pet. at 35–38.

Counsel for amici represent New Hope in its appeal to the

Second Circuit Court of Appeals. New Hope Family Services, Inc.

v. Poole, No. 19-1715. That appeal has been fully briefed and

argued but not yet decided at the time of this filing.

2

6

Specifically, this Court should remedy what

appear to be the primary problems infecting lower

courts’ First-Amendment analyses: courts are

labeling government interests as “compelling” far too

quickly, and they are defining those interests at levels

of generality that are far too high.

As several commentators have noted, the Court’s

current caselaw “suggests there is no bright-line

standard for resolving what a compelling state

interest looks like—no definitive criterion, no

operational definition.” Matthew D. Bunker, et al.,

Strict in Theory, but Feeble in Fact? First Amendment

Strict Scrutiny and the Protection of Speech, 16 COMM.

L. & POL’Y 349, 364 (2011). As a result, “no doubt at

least in part due to the rudderless nature of the

inquiry, compelling interests seem to be proliferating.” Id. at 365. Courts continue to “add new interests

to the list in a casual, off-hand manner suggesting . . .

almost any significant government interest is

sufficiently compelling to satisfy strict scrutiny.”

Russell W. Galloway, Means-End Scrutiny in

American Constitutional Law, 21 LOY. L.A. L. REV.

449, 475 (1988).

“Aside from [elevating] interests that seem less

than compelling, courts also frequently describe

compelling interests at a level of abstraction that

tends to overstate the interest actually present in the

case at hand.” Bunker, et al., at 369. This approach

allows courts to “frame broad compelling interests

that are only marginally related to the actual interest

in the case.” Ibid. “Strict scrutiny is not only not fatal,

it isn’t even strict when such techniques become

commonplace.” Id. at 372.

7

For example, by defining the interests here in the

broadest terms, the court below readily determined

that Dignity Health’s “initial withholding of facilities”

for Minton’s procedure, “albeit for a relatively short

period of time,” nonetheless undermined California’s

“compelling interest in ensuring full and equal access

to medical treatment for all its residents.” App.13–15.

Likewise in Fulton, the “compelling interest” the

Third Circuit identified was “not in maximizing the

number of establishments that do not discriminate

against a protected class, but in minimizing—to

zero—the number of establishments that do.” 922

F.3d at 164. It made no difference that shutting down

CSS’s foster-care ministry would “not increase the

number of foster agencies willing to work with samesex couples,” ibid., while decreasing the number of

children placed. Nor did it matter whether allowing

CSS to stay open would discourage same-sex couples

from becoming foster parents. Ibid. The “mere

existence of CSS’s discriminatory policy [was] enough

to offend the City’s compelling interest in antidiscrimination.” Ibid. Stating the interest in such

broad terms, agencies like CSS don’t stand a chance.

The results would be quite different if courts

defined state interests in terms of the narrower

harms alleged. Here that would mean deciding

whether forcing a Catholic hospital to perform an

elective hysterectomy in violation of its religious

beliefs—rather than allowing the patient to be

transferred to a non-Catholic hospital for the same

surgery by the same doctor three days later—is the

least restrictive means of ensuring timely access to

medical care free from invidious discrimination. California would fail that test; this Court should say so.

8

B. The Catholic Church’s Ethical and

Religious Directives prohibit elective

sterilizations and are patient neutral.

Transferring Minton’s procedure to one of Dignity

Health’s non-Catholic hospitals did not undermine

the State’s interest in ensuring timely access to

medical care free from invidious discrimination.

Minton was still able to have the procedure. It was

elective, so a three-day delay was not untimely. And

Dignity Health was motivated by its respect for

Mercy’s religious beliefs—not animus toward

Minton—so no invidious discrimination occurred.

“[A]s a Catholic hospital, Mercy is bound to follow

its facially neutral ‘Ethical and Religious Directives

for Catholic Health Care Services’ (the Directives)

issued by the United States Conference of Catholic

Bishops.” App.4–5. Those Directives are based on “the

Church’s teaching on medical and moral matters” as

applied “to the ever-changing circumstances of health

care and its delivery.” USCCB, ETHICAL AND

RELIGIOUS DIRECTIVES FOR CATHOLIC HEALTH CARE

SERVICES 3 (5th ed. 2009), https://perma.cc/JF477357. The Directives “reaffirm the Church’s

commitment to health care ministry” and the

“distinctive Catholic identity” of that ministry. Ibid.

That “distinctive Catholic identity” requires

“ethical standards of behavior in health care that flow

from the Church’s teaching about the dignity of the

human person” and “authoritative guidance” on

moral issues facing “Catholic health care today.” Id.

at 4. By supplying those standards and guidance, the

Directives “promote and protect the truths of the

Catholic faith as those truths are brought to bear on

concrete issues in health care.” Id. at 4–5.

9

As relevant here, Directive 53 says that “[d]irect

sterilization of either men or women, whether

permanent or temporary, is not permitted in a

Catholic health care institution.” Id. at 27.

“Procedures that induce sterility are permitted [only]

when their direct effect is the cure or alleviation of a

present and serious pathology and a simpler

treatment is not available.” Ibid.

For that position, the Directives cite the Church’s

teaching that a hysterectomy may be performed only

to “counter an immediate serious threat to the life or

health of the mother.” Congregation for the Doctrine

of the Faith, Responses to Questions Proposed

Concerning “Uterine Isolation” and Related Matters

(July 31, 1993), https://perma.cc/M5Y4-JAZT. In

those circumstances, the procedure “has a directly

therapeutic character, even though it may be foreseen

that permanent sterility will result.” Ibid. “The

removal of the organ has as its aim, therefore, the

curtailing of a serious present danger to the woman

independent of a possible future pregnancy.” Ibid.

Hysterectomies for other reasons, though, “fall

into the moral category of direct sterilization,” which

the Catholic Church “absolutely forbid[s].” Ibid. Any

“contrary opinion . . . cannot be regarded as valid and

may not be followed in Catholic hospitals.” Ibid.

Indeed, Directive 5 requires all Catholic healthcare

providers to “adopt [the] 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, supra, at 12.

10

Importantly, the Directives do not discriminate

based on sex, gender, gender dysphoria, gender

identity, or gender expression—even assuming broad

definitions of those terms. Directive 53 prohibits all

forms of “[d]irect sterilization of either men or

women.” Id. at 27. Only sterilization necessary to

counter an immediate and serious threat to the health

or life of the patient is permitted because the Church

does not consider sterilization under those circumstances to be “direct.” Responses to Questions, supra.

To the Catholic Church and thus to Mercy, it

makes no difference whether Minton is a man or a

woman. Nor does it matter whether Minton believed

a hysterectomy was necessary or for what reason

Minton wanted the procedure. The Catholic Church

and the Directives prohibited it because Minton’s

health and life were not immediately and seriously

threatened. That ends the analysis from the Church’s

perspective. And for the reasons that follow, it should

have ended the lower court’s analysis, too.

II. The ecclesiastical abstention doctrine

shields religious hospitals from state interference with their faith and mission.

Even if Smith survives the Court’s upcoming

decision in Fulton, amici agree that nothing in Smith

“remotely suggests that a state may coerce a religious

institution into allowing its facilities to be used for

activities that run counter to its beliefs.” Pet. at 3. It

is simply not the case “that any application of a valid

and neutral law of general applicability is necessarily

constitutional under the Free Exercise Clause.”

Trinity Lutheran Church of Columbia, Inc. v. Comer,

137 S. Ct. 2012, 2021 n.2 (2017).

11

Instead, this Court has distinguished between

cases involving “government regulation of only outward physical acts,” like Smith, and cases involving

government interference with a religious entity’s

“faith and mission,” like this one. Hosanna-Tabor

Evangelical Lutheran Church & Sch. v. E.E.O.C., 565

U.S. 171, 190 (2012). More specifically, under the

ecclesiastical abstention doctrine—sometimes called

the church-autonomy doctrine—this Court has been

careful to preserve “a spirit of freedom for religious

organizations, an independence from secular control

or manipulation, in short, [the] power to decide for

themselves, free from state interference, matters of

church government as well as those of faith and

doctrine.” Kedroff, 344 U.S. at 116. That doctrine is

deeply rooted in this Court’s caselaw and firmly

founded on the First Amendment, and the Court

should grant the petition here because the court erred

by disregarding it below.

This Court’s first opinion addressing a civil court’s

jurisdiction over matters involving religious organizations is Watson v. Jones, 80 U.S. 679 (1871). That case

involved a schism between a local Presbyterian

Church and the Church’s national General Assembly

regarding slavery and the ownership and use of

church property. Id. at 684–700. The Church

ultimately resolved the dispute internally through a

series of hierarchical ecclesiastical tribunals knows as

Church Sessions (the local churches), Presbyteries,

Synods, and a General Assembly (the highest governing authority). Id. at 681. But certain members filed

a lawsuit in state court, and that lawsuit eventually

reached the Kentucky Court of Appeals. Id. at 685–

87.

12

That court then overruled the Presbyterian

General Assembly’s decision, holding that certain

ruling elders of the local church were not elders and

did not need to be recognized as such by the

congregation. Id. at 699–700. This Court reversed,

articulating the rule of law recognized as the basis for

the ecclesiastical abstention doctrine:

[W]here a subject-matter of dispute [is] strictly

and purely ecclesiastical in its character,—a

matter over which the civil courts exercise no

jurisdiction,—a

matter

which

concerns

theological controversy, church discipline,

ecclesiastical government, or the conformity of

the members of the church to the standard of

morals required of them, . . . [i]t may be said . . .

that no jurisdiction has been conferred on the

tribunal to try the particular case before it, or

that, in its judgment, it exceeds the powers

conferred upon it [to decide the case] . . . .

Id. at 733.

This Court has since expanded the doctrine to

limit every branch of government. Applied to the

judiciary, the doctrine prevents courts from resolving

ecclesiastical disputes. Ibid. Applied to the legislative

and executive branches, the doctrine forbids prohibiting or burdening the free exercise of religion through

state interference with “matters of church government as well as those of faith and doctrine.” Kedroff,

344 U.S. at 116. Accordingly, while a court may hear

a suit if it turns on secular standards without

reference to religious doctrine, it may not scrutinize

religious doctrines to assess the merits of a legal

position. Elvig v. Calvin Presbyterian Church, 375

F.3d 951, 959 (9th Cir. 2004).

13

Here, the Catholic Church’s Ethical and Religious

Directives state the Church’s moral and religious

principles on healthcare issues. Yet Minton’s lawsuit

requires courts to interpret and evaluate the

Directives’ prudence and their application here, and

the California Court of Appeal expressly opened the

door to that sort of inquiry on remand. App.10.

For example, the Court of Appeal said that Dignity

Health’s decision to deny Minton access—at least at

Mercy—to “a procedure as treatment for a condition

that affects only transgender persons supports an

inference that Dignity Health discriminated against

Minton based on his gender identity.” Ibid. “This is

true,” continued the court, “even if the denial was

pursuant to a facially neutral policy.” Ibid.

In other words, the lower court believed that

Minton might be able to show that Dignity Health’s

and Mercy’s reliance on Catholic teachings was

pretextual—a cover for discriminatory intent. “Such

an argument cannot be heard by [the courts] without

impermissible entanglement with religious doctrine.”

Rweyemamu v. Cote, 520 F.3d 198, 209 (2d Cir. 2008).

See also Hosanna-Tabor, 565 U.S. at 194–95 (rejecting the argument that a church’s reason for firing a

teacher “was pretextual” by explaining that the

argument “misses the point of the ministerial

exception,” which is to “ensure[ ] that the authority to

select and control who will minister to the faithful—a

matter ‘strictly ecclesiastical’—is the church’s alone”)

(cleaned up) (quoting Kedroff, 344 U.S. at 119).

Allowing “civil courts to engage in the pretext inquiry

. . . would dangerously undermine the religious

autonomy” religious organizations are due. Id. at

205–06 (Alito, J., concurring).

14

Here, deciding whether “Dignity Health discriminated against Minton based on his gender identity”

despite its reliance on a “facially neutral” religious

policy would require courts to answer several other

impermissible questions. For example, does the

Church consider Minton and women with lifethreatening conditions to be similarly situated?

Under what circumstances will the Church allow and

deny a hysterectomy? Is the Church’s teaching

regarding sterilization motivated by discriminatory

beliefs about gender or gender identity? Or is it

motivated by the Church’s beliefs and teachings about

life, procreation, and human dignity? See, e.g., Paul

VI, Pope, Humanae Vitae (Encyclical Letter on the

Regulation

of

Birth),

July

25,

1968,

https://perma.cc/72W2-23TQ.

These questions show how applying the Directives

to Minton’s claim is inextricably intertwined with the

Catholic Church’s religious teachings. And while

courts can address claims of discrimination, the

Constitution forbids them from determining whether

applying the Directives here was merely pretextual.

That determination necessarily involves inquiry into

the Directives and Church doctrine. It is not the role

of the courts—in California or in any forum—to

mandate the policy and structural reform to Catholic

hospitals that Minton seeks. That policy-setting role

resides with the Catholic Church alone.

15

A federal district court reached that conclusion in

a highly analogous context in Means v. United States

Conference of Catholic Bishops, 2015 WL 3970046

(W.D. Mich. 2015), aff’d on other grounds, 836 F.3d

643 (6th Cir. 2016). There, the plaintiff alleged that a

Catholic hospital negligently failed to discuss with

her the option of terminating her pregnancy. Id. at *2.

The lawsuit thus implicated the Ethical and Religious

Directives’ ban on “direct abortions.” Id. at *13.

Undeterred, the plaintiff argued the ecclesiastical

abstention doctrine did not apply because she was not

asking the court to rule on the Directives’ validity—

but “whether the imposition of the Directives” on her

hospital “caused her harm.” Ibid. The analysis “would

be the same,” she argued, regardless of whether the

Directives were imposed “from religious or secular

motivations.” Ibid. The court emphatically rejected

that characterization of the issues. Ibid.

The plaintiff’s claim “oversimplifie[d]” the “text

and theological underpinnings” of the Directives, as

well as their application “in hospital settings.” Ibid.

Assessing the claim “would require a nuanced

discussion about how a ‘direct abortion’ is defined in

Catholic doctrine.” Ibid. That analysis would raise

multiple doctrinal questions. Ibid. And those

“questions demonstrate[d] how the application of the

Directives [is] inextricably intertwined with the

Catholic Church’s religious tenets.” Ibid. Trying to

answer them would “necessarily involve[ ] inquiry into

the [Directives] themselves, and thus into Church

doctrine.” Ibid. Thus, resolving the plaintiff’s claim

“would impermissibly intrude upon ecclesiastical

matters.” Id. at *14. So the court dismissed it. Ibid.

16

The same is true here. Deciding whether Dignity

Health’s decision “supports an inference” that it

discriminated based on Minton’s gender identity,

even “pursuant to a facially neutral policy” based on

the Directives, App.10, “necessarily involves inquiry

into the [Directives] themselves, and thus into

Church doctrine,” Means, 2015 WL 3970046 at *13.

That inquiry “would impermissibly intrude upon

ecclesiastical matters.” Id. at *14. Thus, the courts

should have abstained and dismissed with prejudice.

“It is not up to the [courts] to mandate the larger

structural and policy reform to Catholic hospitals that

[Minton] seeks; that issue is left to the Church and its

tribunals.” Ibid. This Court should grant the petition

and reverse to reaffirm that religious organizations

like the Catholic Church and hospitals like Mercy

remain “free from state interference” in “matters of

church government as well as those of faith and

doctrine.” Kedroff, 344 U.S. at 116.

III. The federal Church Amendment preempts

the claim that patients can force religious

hospitals to perform elective sterilizations.

Finally, the lower court erred because the federal

Church Amendment prohibits Minton’s lawsuit. That

Amendment makes clear that even a government

“grant, contract, loan, or loan guarantee . . . does not

authorize any court or any public official or other

public authority to require” a healthcare entity to

“make its facilities available for the performance of

any sterilization procedure or abortion if the performance of such procedure or abortion in such facilities

is prohibited by the entity on the basis of religious

beliefs or moral convictions.” 42 U.S.C. 300a-7(b).

17

What is more, the Amendment states that no court

or public official may require the healthcare entity to

“provide any personnel for the performance or

assistance in the performance of any sterilization

procedure or abortion if the performance or assistance

in the performance of such procedures or abortion by

such personnel would be contrary to the religious

beliefs or moral convictions of such personnel.” Ibid.

Here, Minton is asking this Court to do precisely

what § 300a-7 prohibits: force a Catholic hospital in

the Dignity Health system to perform sterilization

procedures contrary to the hospital’s religious beliefs.

Those beliefs are undisputed, as they are embodied in

the Ethical and Religious Directives that Dignity

Health must allow Mercy to follow in order to call

itself a “Catholic” hospital. It also cannot be disputed

(particularly without getting into the Church’s

ecclesiastical teachings on the subject) that the Directives forbid a Catholic hospital from performing a

hysterectomy in the circumstances presented here.

“The Supremacy Clause provides a clear rule that

federal law ‘shall be the supreme Law of the Land;

and the Judges in every State shall be bound thereby,

any Thing in the Constitution or Laws of any state to

the Contrary notwithstanding.’” Arizona v. United

States, 567 U.S. 387, 399 (2012) (citing U.S. Const.,

art. VI, cl. 2). Preemption occurs when a federal law

contains an express preemption provision, regulates

an entire field, or conflicts with state law. Ibid. That

third category “includes cases where compliance with

both federal and state regulations is a physical

impossibility” and cases “where the challenged state

law stands as an obstacle” to Congress’s “full purposes

and objectives.” Id. at 399–400 (cleaned up).

18

Here, the California Court of Appeal applied

California’s Unruh Civil Rights Act to force Dignity

Health, Mercy, and other California religious entities

to perform procedures that violate their religious

beliefs. That application of the state statute impedes

Congress from accomplishing its objective—through

the Church Amendment—of protecting religious

healthcare institutions from courts and public

officials who would force them to violate their

religious beliefs. See also Watkins v. Mercy Med. Ctr.,

364 F. Supp. 799, 803 (D. Idaho 1973), aff’d on other

grounds, 520 F.2d 894 (9th Cir. 1975), (holding that a

doctor who wanted to perform sterilizations could not

“force Mercy Medical Center to allow him to perform

them in its hospital,” and that to “hold otherwise

would violate the religious rights of the hospital”).

In this case, the conflict could not be clearer: by

applying the Act against Dignity Health, the

California Court of Appeal approved precisely what

the Church Amendment prohibits. Such an egregious

error is grounds for summary reversal. On that basis,

this Court should grant the petition—adding an

additional question presented if needed to reach the

issue—and reverse the decision below.

19

CONCLUSION

The petition for a writ of certiorari should be

granted or, in the alternative, held pending the

disposition of Fulton v. City of Philadelphia.

Respectfully submitted,

JOHN J. BURSCH

Counsel of Record

ALLIANCE DEFENDING

FREEDOM

440 First Street NW

Suite 600

Washington, DC 20001

(616) 450-4235

jbursch@ADFlegal.org

CHRISTOPHER P. SCHANDEVEL

ALLIANCE DEFENDING

FREEDOM

20116 Ashbrook Place

Suite 250

Ashburn, VA 20147

(571) 707-4655

cschandevel@ADFlegal.org

APRIL 2020