Asian doctor and an assistant in the operating room for surgical venous vascular surgery clinic in hospital.
Asian doctor and an assistant in the operating room for surgical venous vascular surgery clinic in hospital.
Humanize From Discovery Institute's Center on Human Exceptionalism

Maryland Catholic Hospital Liable for Refusing Transgender Hysterectomy

Wesley J. Smith
arroba Email

Two principles of Catholic health-care ethics forbid removing healthy organs and sterilizing a patient absent a necessity caused by a pathology, such as cancer. These principles are increasingly in conflict with the transgender movement that has the ACLU and others suing when Catholic hospitals refuse transgender surgeries based on these religiously based precepts.

Now, a district judge has awarded a summary judgment against a Maryland Catholic hospital for refusing to remove the healthy uterus of a patient who identifies as male. But there is an unusual twist here that may not apply in other such cases being filed all over the country. St. Joseph’s is owned by the University of Maryland Health System, meaning it is a public hospital.

But the contractual terms of the purchase required the hospital to continue to operate under Catholic doctrines as set forth by the National Catholic Bioethics Center. The NCBC guidelines say this about transgender medical procedures, as quoted in the ruling in Hammons v. University of Maryland Medical System Corporation:

The National Catholic Bioethics Center, which regularly audits St. Joseph for compliance with the ERDs, has issued a guidance document that states: “Gender transitioning of any kind is intrinsically disordered because it cannot conform to the true good of the human person, who is a body-soul union unalterably created male or female. Gender transitioning should never be performed, encouraged, or positively affirmed as a good in Catholic health care. This includes surgeries, the administration of cross-sex hormones or pubertal blockers, and social or behavioral modifications.”

The hospital was contractually bound to follow these precepts. But that conflicts with Maryland law and the Affordable Care Act that forbid such refusals as sex discrimination. Moreover, because the hospital will perform a hysterectomy to remove a diseased uterus, it cannot consistently refuse the transgender procedure because both are “medically necessary.” In other words, the patient’s gender dysphoria should be considered a pathology like uterine cancer is. Thus, the judge ruled:

Mr. Hammons did have a medical need for his requested hysterectomy; he was not seeking a hysterectomy for the purpose of elective sterilization. He sought a hysterectomy to treat his gender dysphoria, as recommended by his doctor. Indeed, St. Joseph Dr. Cunningham confirmed that St. Joseph’s “frequently” performs hysterectomies, even though they result in sterilization, on patients that have a medical need for that surgery—as long as the medical need is not from gender dysphoria.

Never mind, then, that the patient’s organ was healthy. The patient’s subjective desires and feelings with regard to gender dysphoria, once diagnosed, are treated no differently than a case in which a biopsy discloses a cancerous tumor. To me, that is ridiculous — particularly in the context of the ongoing legal and political assault on Catholic health care — but there is no question that has become the standard in transgender medicine.

The court applied the reasoning of an employment-discrimination Supreme Court case to the refusal to perform the surgery:

The Supreme Court held in Bostock v. Clayton County, that employment discrimination against transgender individuals is sex discrimination under Title VII of the Civil Rights Act of 1964. The Court explained that “it is impossible to discriminate against a person for being. . . transgender without discriminating against that individual based on sex.”…

The judge refers to school transgender bathroom cases under Title IX, and even though higher courts have not applied this approach to medical cases such as this, she will:

Applying that reasoning here, if a hospital has a policy against performing a surgery to treat gender dysphoria—a condition inextricably related to a person’s sex—but will perform that surgery to treat any other medical diagnosis, the hospital intentionally relies on sex in its decision making.

Summary judgment granted. Damages to be determined by a jury trial, and they could be huge. And now you see how once unleashed, these things never stop expanding.

This case is like the Dignity Health case in California that I have written about here, except in that circumstance, the Catholic hospital is not publicly owned. So what? The courts of California still ruled that the hospital was not protected from suit based on freedom of religion.

Other points of worry:

  • The judge seemed to say that liability applies because the hospital receives federal funding through Medicare, etc.
  • Moreover, she applied other cases that have found that the Religious Freedom Restoration Act does not protect suits involving private parties.

Thus, if the government wants to crush hospitals and medical institutions that don’t wish to participate in abortion or transgender procedures — which the Biden administration clearly does — it merely needs to establish a right to private causes of action by regulation or statute, and freedom of religion is down the drain.

I am sure there will be an appeal. But the immediate moral of the story for Catholic hospitals is not to become publicly owned. Otherwise, your Catholic-doctrine legal goose could well be cooked.