Harrington: What the ACLU lawsuit may mean for San Juan Island

On Thursday February 19 , the ACLU filed suit against Skagit Regional Health to enforce the Reproductive Privacy Act. It also sent letters to three other hospital districts. 

 

I thought it might also be useful to answer some questions about this as I believe it relates to the public hospital district on San Juan Island. Note that I am not an attorney, though I do know several very smart attorneys who are engaged on these issues. These views are my own.

1) What does this mean for San Juan Island and PeaceIsland Medical Center?

The action taken against Skagit Regional is one that will clarify the obligations of a WA public hospital district that provides maternity services. The San Juan Island Public hospital district clings to the dual fiction that it: 1) provides no maternity care, thus freeing it from any obligation to provide "substantially equivalent" abortion services; and 2) that its stance to not provide medical services to pregnant women while providing them to all other residents ON AN ISLAND is somehow legally defensible.

San Juan Island was not a direct target in this case but this case will absolutely inform what happens on SJI moving forward.

The lawsuit will clarify the obligations of a public hospital district that provides maternity services. Note that WA's attorney general has already weighed in on this issue, making clear that he believes that any hospital district that provides maternity services MUST provide substantially equivalent services. Some of this will come down to what "substantially equivalent" means.

From some of the commentary from Skagit, it appears they think "substantially equivalent" means that they can offer subsidized maternity services but then send women to Planned Parenthood for abortions. If sending someone elsewhere is "substantially equivalent" to actually providing a service, then I'm going to start a business where I collect fees from people for a service, and then, instead of actually providing that service, pocket the fee and point them to another provider down the street.

It will be interesting to see this play out in Court. The ACLU of WA is coming off of some major wins, most recently in the Arlene's Flowers case. You can read about that case here:

In a separate case the ACLU recently won in Yakima, the discussion now has turned to how much the city will have to pay the ACLU to cover its attorney fees. The city is already out almost a million dollars to the attorneys it hired to fight the ACLU in court. You can read about the case here

What do you think the outcome of this case will be?

I expect that a ruling will make clear that when the voters enacted the Reproductive Privacy Act, they expected government officials, including public hospital district commissioners, to follow the law. Consistent with the AG's formal opinion on this matter, I think any public hospital district that provides maternity services will be required to also provide abortion services.

What does this mean for San Juan Island?

I hope that the community elects new public hospital commissioners who recognize the gathering legal storm and act preemptively to resolve the issue before a case is filed. By continuing with the charade of saying publicly that they provide no maternity services, including prenatal services and medical services to new mothers - ON AN ISLAND - the SJI commissioners are setting themselves up for an epic lawsuit.

There has already been public testimony from a public hospital district commissioner that there have many times when patients could not be flown off the island because of icing/bad weather. We already know that Interisland Medical Center regularly provided prenatal care. We also know babies have been born on the island since the new PIMC facility opened. The set of facts already available puts the hospital district in a very precarious legal position.

I believe I know WHY the public hospital district commissioners on SJI have done what they've done. They don't believe they should have to follow the RPA, and in order to avoid having to follow it, they've made up this absurd fiction that it's somehow reasonable to claim publicly that while they subsidize services for anyone who is NOT pregnant, they deny services to pregnant women. It's absurd, bordering on crazy, especially when there's data to show that about two-thirds of women giving birth in San Juan County are low-income enough to qualify for Medicaid.

While public hospital districts can choose to provide a limited set of services, for example, ambulance services or extended-care services, no one has suggested that they can discriminate against pregnant women as this hospital district has done by subsidizing medical services, including primary care services and emergency services, to everyone except pregnant women and new mothers.

It's my view that a pregnant woman who is denied care or who suffers in any way because of a lack of appropriate care will be able to file a powerful complaint and she'll have powerful attorneys on her side. The public testimony already existing on this issue is compelling, including a public hospital district commissioner's inability to provide a coherent answer as to where a pregnant woman on SJI should go for medical care.

It makes perfect sense that the ACLU would file a lawsuit in Skagit first. I believe the issues decided in that case will apply to several hospital districts around the state and will make litigation against the SJI public hospital district even easier. The ACLU has already made clear that this lawsuit is part of a broader initiative to bring ALL public hospital districts into compliance with State law.

There is a window where the public hospital district commissioners of SJI can act. If they don't, they will have to answer to the community as to why they are subjecting the San Juan Island community (and themselves, in their official capacity) to unnecessary and potentially hugely expensive legal action.

This is an important year for the San Juan Island hospital district. Several seats are expected to be open, and there has already been some discussion about next steps on the levy that subsidizes PeaceHealth.

Given the potential for costly, embarassing litigation, it's my hope that San Juan Islanders will make clear to the current hospital district commissioners and to new commissioners to be voted in this year that serving the needs of islanders and not PeaceHealth, a multi-state religious entity, is the priority. Bringing the hospital district into compliance with the Reproductive Privacy Act without discriminating against pregnant women must be a priority. Regardless of how anyone "feels" about these issues, the fiscal threat of noncompliance should be clear.

What about the broader issue of tax dollars subsidizing a religious entity?

As you might have noticed, the ACLU files litigation very strategically after extensive fact-finding. The issue of tax dollars being used to subsidize religion continues to be a major concern. The WA State Constitution says very clearly that "No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment."

Monica Harrington

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