1 MANATT, PHELPS & PHILLIPS, LLP

BARRY S. LANDSBERG (Bar No. CA 117284)

2 blandsberg@manatt.com
HARVEY L. ROCHMAN (Bar No. CA 162751)
3 hrochman@manatt.com
JOANNA S. MCCALLUM (Bar No. CA 187093)
4 jmccallum@manatt.com
CRAIG S. RUTENBERG (Bar No. CA 205309)
5 crutenberg@manatt.com
COLIN M. MCGRATH (Bar No. CA 286882)
6 cmcgrath@manatt.com
11355 West Olympic Boulevard
7 Los Angeles, CA 90064-1614
Telephone: (310) 312-4000 / Fax: (310) 312-4224
8
MANATT, PHELPS & PHILLIPS, LLP
9 BARRY W. LEE (Bar No. CA 088685)
bwlee@manatt.com
10 One Embarcadero Center, 30th Floor
San Francisco, CA 94111
11 Telephone: (415) 291-7400 / Fax: (415) 291-7474

12 Attorneys for Respondent

Dignity Health dba
13 Mercy Medical Center Redding

14 SUPERIOR COURT OF THE STATE OF CALIFORNIA

15 FOR THE COUNTY OF SAN FRANCISCO

16
REBECCA CHAMORRO and Case No. CGC 15-549626
17 PHYSICIANS FOR REPRODUCTIVE
HEALTH, Hon. Harold E. Kahn
18
Petitioners, RESPONDENT DIGNITY HEALTH'S
19 MEMORANDUM OF POINTS AND
v. AUTHORITIES IN SUPPORT OF
20 MOTION FOR SUMMARY JUDGMENT
DIGNITY HEALTH; DIGNITY HEALTH
21 d/b/a MERCY MEDICAL CENTER PUBLIC REDACTED VERSION
REDDING,
22 Date: June 19,2019
Respondent. Time: 9:30 a.m.
23 Dept.: 302
Hearing Reservation No. 03080619-06
24
Complaint filed: December 29, 2015
25 Petition Filed: March 1, 2017
Trial Date: June 17, 2019
26

27

28
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DIGNITY HEALTH'S MOTION FOR SUMMARY JUDGMENT

 1 TABLE OF CONTENTS

2 Page
3 I. INTRODUCTION 1
II. FACTS ...3
4
A. Procedural History 3
5
B. Background Regarding Section 1258 4
6 C. The Ethical and Religious Directives for Catholic Health Care Services 5
D. Dignity Health and the Hospitals 6
7
1. Dignity Health 6
8 2. The Hospitals 6
9 E. The Hospitals' Sterilization Policies and Medical Staff Bylaws 7
F. Petitioners 8
10
1. Chamorro 8
11 2. PRH 8
12 G. Dr. Van Kirk 8
H. Dr. Jackson 10
13
I. The Review Process and Decision 10
14 1. North State Catholic Hospitals 10
15 2. Sacramento Catholic Hospitals 11
III. SUMMARY JUDGMENT SHOULD BE ENTERED 11
16
A. Section 1258 11
17
B. The Hospitals Have Never Been Cited For Violating Section 1258 12
18 C. The Hospitals' Quasi-Legislative Decisions Are Afforded the Highest
Levels of Judicial Deference 12
19 D. The Sterilization Policies and the Review Process Do Not Violate Section
1258 : 14
20
1. Section 1258 Does Not Require Health Facilities to Permit
21 Sterilization Procedures for Contraceptive Purposes 14
2. The Hospitals Do Not Permit Sterilization Operations for
22 Contraceptive Purposes; therefore, Section 1258 does not apply 14
23 3. The Hospitals Consider Only Medical Risk Factors and Physical
Conditions; therefore, the Hospitals Do Not Violate Section 1258 15
24 4. The ERDs are Not a Nonmedical Qualification Imposed on Patients 16
25 E. Dignity Health is Immune From Liability for Declining Requests for
Sterilization Based on Reasons of Conscience 17
26 F. The Relief Petitioners Seek Would Violate the State and Federal
Constitutions 18
27
IV. CONCLUSION 19
28
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DIGNITY HEALTH'S MOTION FOR SUMMARY JUDGMENT
 1 TABLE OF AUTHORITIES

2 Page
3 CASES

4 Allen v. Sisters of St. Joseph,

361 F. Supp. 1212 (N.D. Tex. 1973), appeal dismissed, 490 F.2d 81 (5th Cir.
5 1974) 19

6 Armin v. Riverside Comm. Hosp.,

5 Cal. App. 5th 810, 834 (2016) 5
7 Brownfield v. Daniel Freeman Marina Hosp.,
8 208 Cal. App. 3d 405 (1989) 16
California Med. Assn. v. Lackner,
9 124 Cal. App. 3d 28 (1981) 5, 16
10 California Water Impact Network v. Newhall Cty. Water Dist.,
161 Cal. App. 4th 1464 (2008) 13
11
Catholic Charities of Sacramento v. Sup. Ct., ,
12 32 Cal.4th 527 (2004) 18

13 Chrisman v. Sisters of St. Joseph of Peace,

506 F.2d 308 (9th Cir. 1974)...' 19
14 EEOC v. Catholic Univ. of Am.,
15 83 F.3d 455 (D.C. Cir. 1996) 18
El-Attar v. Hollywood Presbyterian Med. Ctr.,
16 56 Cal. 4th 976 (2013) 7
17 Ellena v. Dep 't of Ins.,
230 Cal. App. 4th 198 (2014) 13
18
Hassan v. Mercy Am. River Hosp.,
19 31 Cal. 4th 709 (2003) 15

20 Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C.,

565 U.S. 171 (2012) 19
21
Lew in v. St. Joseph's Hospital of Orange,
22 82 Cal. App. 3d 368 (1978) 2, 13
Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n,
23 138 S. Ct. 1719(2018) 18
24 Mateo-Woodburn v. Fresno Community Hosp. & Med. Ctr.,
221 Cal. App. 3d 1169 (1990) : 13
25
Means v. U.S. Conference of Catholic Bishops,
26 2015 WL 3970046 (W.D. Mich. June 30, 2015), aff'd (6th Cir. 2016) 836 F.3d
643 5, 18
27
New v. Kroeger,
28 167 Cal. App. 4th 800 (2008) 18
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DIGNITY HEALTH'S MOTION FOR SUMMARY JUDGMENT
 1 TABLE OF AUTHORITIES
(continued)
2 Page
3 North Coast Women's Care Med. Grp. v. Sup. Court,
44 Cal. 4th 1145 (2008) 18
4
People v. Pantoja,
5 122 Cal. App. 4th 1 (2004) .,..18

6 People v. Woody,
61 Cal. 2d 716 (1964) 18, 19
7 Pitts v. Perluss,
8 58 Cal. 2d 824(1962) 12
Ridgecrest Charter Sch. v. Sierra Sands Unified Sch. Disl.,
9 130 Cal. App. 4th 986 (2005) 2, 13
10 San Joaquin Local Agency Formation Com 'n v. Sup. Ct.,
162 Cal. App. 4th 159 (2008) 12
11
Smith v. FEHC,
12 12 Cal. 4th 1143 (1996) 18

13 St. Bd. of Chiropractic Examiners v. Sup. Ct.,

45 Cal. 4th 963 (2009) 12
14 Taylor v. St. Vincent's Hosp.,
15 523 F.2d 75 (9th Cir. 1975) 19
Watkins v. Mercy Med. Ctr.,
16 364 F. Supp. 799 (D. Idaho 1973), aff'd, 520 F.2d 894 (9th Cir. 1975) 19
17 STATUTES

18 Bus. & Prof. Code § 733(b)(3) 16

Cal. Code Regs., tit. 22, § 70101(c) 12
19
Cal. Code Regs., tit. 22, § 70103 12
20
Cal. Code Regs., tit. 22, § 70117 12
21 Cal. Code Regs., Title 22, § 70135(a) 12
22 Cal. Code Regs., tit. 22, § 70703(a) 7

23 Cal. Code Regs., Title 22, § 707030)1 7

Cal Code Regs., Title 22, § 70707 2 12
24
Cal. Ins. Code § 10123.196(g) 15
25
Civ. Proc. Code § 1085(a) 13
26 Health & Saf. Code § 1258 passim
27 Health & Saf. Code §1290 12
Health & Saf. Code § 1293 12
28
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DIGNITY HEALTH'S MOTION FOR SUMMARY JUDGMENT
 1 TABLE OF AUTHORITIES
(continued)
2 Page
3 Health & Saf. Code § 1367.25(e) 15

4 Health & Saf. Code § 123420 16

Probate Code § 4734(b) 16, 17
5
Probate Code § 4740 19
6
Probate Code § 4740(d) 17
7 OTHER AUTHORITIES
8 Cal. Const., Article I, § 4 18

9 Dignity Health, Mission, Vision and Values,

http://qa.dignitYhealth.org/cm/content/history-and-mission.asp 6
10 http://ag.ca.gOv/publications//womansrights/ch5.php#5 2 14
11 http://emedicine.medscape.com/article/266799-overview 4

12 http://humrep.oxfordi ournals.org/ content/15/11 /243 3.long 16

https://apps.co.shasta.ca.us/fbn/asp/FBNDocDetail.asp?DocID:=2017-0000143 7
13
https://hfcis.cdph.ca.gov/LongTermCare/ConsumerComplaint.aspx 12
14
https://www.cdph.ca. gov/pro grams/chcq/lcp/calhealthfmd/Pages/Home.aspx 12
15 https://www.cdph.ca.gov/Programs/CHCQ/LCP/CalHealthFind/Pages/SearchResu
lt.aspx?k=ST.%20ELIZABETH%20COMMUNITY%20HOSPITAL&loc= 7
16
https://www.cdph.ca.gov/Programs/CHCQ/LCP/CalHealthFind/Pages/SearchResu
17 lt.aspx?k=ST.%20ELIZABETH%20COMMUNITY%20HOSPITAL&loc= 7
18 https://www.ncbi.nlm.nih.gOv/pubmed/l 2039116 16
Mercy Medical Center Redding, Mission, Vision and Values,
19
http://www.dignitvhealth.org/mercv-redding/about-us/mission-vision-values 7
20 Peter R. Forbes, Voluntary Sterilization of Women as a Right 4
21 Rebecca M. Kluchin, Fit to Be Tied: Sterilization and Reproduction Rights in
America 1950-1980 (2011) 4
22

23

24

25

26

27

28
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DIGNITY HEALTH'S MOTION FOR SUMMARY JUDGMENT
 1 I. INTRODUCTION

2 Petitioners Rebecca Chamorro ("Chamorro") and Physicians for Reproductive Health ("PRH" )

3 allege that "Dignity Health prohibits doctors from performing [] immediate postpartum tubal ligations

4 based on nonmedical qualifications and/or sterilization policies reflecting the [Ethical and Religious

5 Directives for Catholic Health Care ("ERDs")], including age and number of prior births, in violation

6 of Health & Safety Code Section 1258 [("Section 1258")]." (Ex. 8, Petition ("Pet."), f 67.)1 The

7 undisputed material facts establish that Petitioners' allegations are incorrect; the Hospitals2 act lawfully

8 in accordance with Section 1258. Section 1258 does not require health facilities to make contraceptive

9 sterilization procedures available on demand, it permits health facilities to prohibit such procedures,

10 and it expressly authorizes health facilities to condition such procedures upon the "physical or mental

11 condition" of the patient. The Dignity Health Catholic hospitals' (the "Catholic Hospitals" or the

12 "Hospitals") conduct is entirely lawful under Section 1258 because the Hospitals do not perform

13 sterilization operations for contraceptive purposes and, as expressly permitted by Section 1258,

14 consider the physical condition of the patient in determining whether to allow a tubal ligation. The

15 Court should grant this motion for summary judgment because the Petition fails as a matter of law for

16 four independent reasons:

17 First, the Catholic Hospitals do not perform sterilization procedures for "contraceptive

18 purposes." Section 1258 applies only to a "health facility which permits sterilization operations for

19 contraceptive purposes to be performed therein." The undisputed facts establish that the Catholic

20 Hospitals' "purpose" is not contraception.

21 Second, the undisputed evidence establishes that the Catholic Hospitals do not require patients

22 seeking a tubal ligation to meet special non-medical qualifications. To the contrary, the Hospitals

23 consider medical factors and physical conditions of the patient. Section 1258 prohibits only the

24 consideration of special non-medical qualifications and expressly pennits the consideration of the

25 "physical or mental condition" of the patient.

26
' "Ex" references are to Respondent Dignity Health's Appendix of Evidence in Support of its Motion for Summary
27 Judgment filed concurrently herewith.
2 "Hospitals" refers to Mercy Medical Center Redding ("MMCR"), St. Elizabeth Community Hospital ("St.

28 Elizabeth"), Mercy Medical Center Mt. Shasta ("Mercy Mt. Shasta"), Mercy General Hospital ("Mercy General"),
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Mercy San Juan Medical Center ("Mercy San Juan"), and Mercy Hospital of Folsom ("Mercy Folsom").
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DIGNITY HEALTH'S MOTION FOR SUMMARY JUDGMENT
 1 For example, it is not disputed that "[a]dvanced maternal age" and "grand multiparity," which

2 are considered by the Catholic Hospitals, are medical risk factors related to a patient's physical

3 condition that indicate an increased risk of uterine rupture in a future pregnancy. Section 1258

4 expressly grants discretion to health facilities to adopt policies that condition sterilization procedures

5 upon the physical condition of the patient. Accordingly, on the undisputed evidence, Dignity Health is

6 entitled to judgment as a matter of law. Petitioners cannot interfere with the Catholic Hospitals' lawful

7 exercise of discretion simply because they disagree. Lew in v. St. Joseph's Hospital of Orange, 82 Cal.

8 App. 3d 368, 384-85 (1978) ("A managerial decision concerning the operation of the hospital made

9 rationally and in good faith by the board to which operation of the hospital is committed by law should

10 not be countermanded by the courts unless it clearly appears it is unlawful or will seriously injure a

11 significant public interest");3 see also Ridgecrest Charter Sch. v. Sierra Sands UnifiedSch. Dist., 130

12 Cal. App. 4th 986, 1003 (2005) ("the District was obligated to follow the law. .. but how it did that

13 was largely a matter committed to its discretion").

14 Third, as Petitioners concede, Section 1258 was enacted to "prohibit arbitrary criteria

15 established by hospitals and clinics." (Pet., 10.) The sterilization policies are not arbitrary. The

16 policies were lawfully adopted by the Catholic Hospitals in accordance with their mandatory duty to

17 adhere to the ERDs. Moreover, the legislative history reflects that Section 1258 was enacted to

18 eliminate age/parity ratios - restrictions placed on contraceptive sterilization procedures based upon a

19 requirement that the product of the patient's age multiplied by her number of children must meet or

20 exceed some arbitrary number or similar socio-economic factors. Petitioners have not even alleged

21 that the Hospitals apply such arbitrary criteria, much less the socio-economic factors which the

22 Legislature intended to preclude.

23 Petitioners pled and told the Court that Dignity Health violated Section 1258 because the

24 Catholic Hospitals considered the age and number of children of patients seeking a tubal ligation in

25 connection with determining whether to allow a tubal ligation. When the Court dismissed Petitioners'

26 other claims in August 2016, Petitioners latched onto Section 1258 in the hopes of coming up with a

27
3 As Judge Goldsmith admonished Petitioners at the inception of this case, the Hospitals can simply close their labor

28 and delivery wards altogether. (Ex. 9, 23:21-26; 24:5-8, Judge Goldsmith: "the hospital here in Redding can say we're
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not going to deliver babies anymore if we're going to get involved in this.")
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DIGNITY HEALTH'S MOTION FOR SUMMARY JUDGMENT
 1 viable claim of some type. However, these allegations are demonstrably incorrect. Dr. Samuel Van

2 Kirk ("Dr. Van Kirk"), Chamorro's treating physician, and Dr. Rebecca Jackson ("Dr. Jackson"),

3 Petitioners' expert, both readily admitted in deposition that) the factors considered by the Catholic

4 Hospitals are medical qualifications that relate to the physical condition of the patient, which are

5 expressly permitted by Section 1258.

6 Fourth, any interpretation of Section 1258 that would prohibit the Hospitals from following the

7 dictates of Catholic religious doctrine would be an unlawful and improper intrusion into the Hospitals'

8 free exercise of religion that would impermissibly entangle the Court with religious doctrine.

9 Petitioners cannot compel the Catholic Hospitals to perform contraceptive sterilization procedures on

10 demand, nor may they control the manner in which the Hospitals lawfully consider the physical

11 condition of patients in connection with reviewing requests for sterilization. No trial is required because

12 the material facts are not disputed. The Court should grant Dignity Health's motion and enter judgment

13 in its favor.

14 II. FACTS
15 A. Procedural History
16 Petitioners filed their Complaint alleging violations of the Unruh Act, the Government Code,

17 the Business & Professions Code, Section 1258, and the Unfair Competition Law ("UCL") on

18 December 28, 2015. On January 14, 2016, the Court denied Plaintiffs Motion for Preliminary

19 Injunction finding that Dignity Health established that "it does not permit 'sterilization operations for

20 contraceptive purposes.'" (Ex. 9.) On August 1, 2016, the Court sustained Dignity Health's demurrers

21 without leave to amend as to all causes of action except Plaintiffs' UCL claim based upon an alleged

22 violation of Section 1258. (Ex. 10.)4 On February 9, 2017, the Court granted Dignity Health's Motion

23 for Judgment on the Pleadings, and granted Plaintiffs leave to file the operative Verified Amended

24 Petition for Writ of Mandate.5 (Ex., 11.)

25

26 4 The Court also dismissed Plaintiffs' claim directly under Section 1258, ruling that the statute did not authorize a
private right of action. (Ex. 10, p. 5.)
27 5 On October 3, 2017 the Court entered a discovery order, and on January 5, 2018, the parties entered a stipulation on

the record limiting discovery and establishing the administrative record for the case, which included specified
28 depositions of members of the review committee, including Mission Integration representatives and physicians, and the
production of Request for Sterilization records, in redacted form, from the six Hospitals. (Ex. 13.)
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DIGNITY HEALTH'S MOTION FOR SUMMARY JUDGMENT

 1 B. Background Regarding Section 1258.

2 Before about 1970, tubal ligations were rarely performed for voluntary contraception, as the

3 procedure required open abdominal surgery, general anesthesia, and a multiple-day hospital stay.6 As

4 less invasive procedures for tubal ligation became more common, demand for the procedure grew

5 rapidly. However, the so-called "age/parity policies" imposed in the 1950's remained in place in most
* 7 • • * •

6 hospitals. Until 1969, the American College of Obstetricians and Gynecologists ("ACOG") endorsed

7 an "age-parity stipulation," which provided that a woman could not qualify for voluntary sterilization

8 unless her age multiplied by the number of her children equaled 120.8 Under such a rule, a mother of

9 one could not obtain a tubal ligation until she was 120 years old. Policies consistent with ACOG's

10 "Rule of 120" existed at hospitals across the country.

11 When State Senator Anthony C. Beilenson introduced S.B. 1358, which became Section 1258,

12 he recognized the growing demand for voluntary contraceptive surgical procedures, and stated his

13 intent to eliminate the age/parity stipulations used to limit such procedures, while also preserving the

14 rights of facilities to prohibit such procedures.9 (Ex.28.) Senator Beilenson stated that the bill would

15 eliminate "arbitrary" "non-medical qualifications [that] usually relate to the age of the patient and the

16 number of children the patient already has .... Frequently, it boils down to a numbers game of sorts

17 with 120 being the magic number.... SB 1358 would end this situation." {Id.) Senator Beilenson

18 "emphasized" that the bill "would not force any hospital or any clinic to offer sterilization services if

19 they choose not to."10 {Id.)

20 Less than ten years later the Court of Appeal recognized that "the 'nonmedical qualifications'

21 named in the statute age, marital status, number of children unambiguously imply that the evil in mind

22
6 See, e.g., Rebecca M. Kluchin, Fit to Be Tied: Sterilization and Reproduction Rights in America 1950-1980 (2011) at p. 69.
23 7 Kluchin, at p. 22. According to Kluchin, many hospitals had even more restrictive policies of 150 or more "points."
See also Peter R. Forbes, Voluntary Sterilization of Women as a Right, 18 De Paul L. Rev. 560, 562 (1969).
24 8 http://emedicine.medscape.com/article/266799-overview.

9 As enacted in 1972, Senate Bill 1358 added sections 1225, 1416, 1459, and 32128.10 to the Health & Safety Code.

25 However, the provision applicable to general hospitals, Section 1416, was inadvertently deleted one year later. In 1974,
the legislature passed Senate Bill 1872, which re-added the statute as Section 1258. Again, the legislative history reflects
26 that Senate Bill 1872 was presented to address Section 1416's inadvertent deletion, and was "aimed at halting use of the
so-called '120 point' system then employed at many hospitals." (Ex. 30.)
27 10 See also Ex. 29 ("The author's office advises that [the bill] results from a survey showing that a large number of

hospitals have been refusing to permit contraceptive sterilization operations because of institutional policies requiring
28 conformity with various ratios based upon age and number of children. The purpose is to require discontinuance of
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these practices while preserving the authority to consider physical and mental conditions . . . (emphasis added).)
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DIGNITY HEALTH'S MOTION FOR SUMMARY JUDGMENT
 1 is the use of socio-economic factors to determine whether or not to permit an individual to be

2 sterilized."11 California Med. Assn. v. Lackner, 124 Cal. App. 3d 28, 37 (1981) (holding that waiting

3 periods and special forms are not nonmedical qualifications but requirements related to patient's

4 mental condition) (emphasis added).

5 C. The Ethical and Religious Directives for Catholic Health Care Services.

6 The ERDs are promulgated by the U.S. Conference of Catholic Bishops. (UMF11; Pet., f 52.)

7 "Individual bishops exercise authority under Canon law to bind all Catholic health care institutions

8 located within their diocese to the ERDs as particular law within the diocese." Means v. U.S.

9 Conference of Catholic Bishops, 2015 WL 3970046, at *3 (W.D. Mich. June 30, 2015), aff'd (6th Cir.

10 2016) 836 F.3d 643; Declaration of the Most Reverent Bishop Jaime Soto ("Bishop Soto Decl."), f 4.

11 The ERD's purpose is to "reaffirm the ethical standards of behavior in health care that flow from the

12 Church's teachings about the dignity of the human person" and "to provide authoritative guidance on

13 certain moral issues that face Catholic health care today." Means, 2015 WL 3970046, at *3 (Preamble

14 to the ERDs). Directive 5 provides that "Catholic health care services must adopt these Directives as a

15 policy, [and] require adherence to them within the institution as a condition for medical privileges and

16 employment...." (Declaration of Sister Brenda O'Keeffe ("Sr. O'Keeffe Decl."), f 7 (emphasis

17 added).) A Catholic hospital risks the Bishop's revocation of its Catholic status under Canon Law if it

18 does not comply with the ERDs.12 Petitioners concede Dignity Health's Catholic hospitals are

19 required to comply with the ERDs. (UMF f 5.)

20 Directive 53 bars direct sterilization procedures. (UMF f 3.) "Direct sterilization of either men

21 or women, whether permanent or temporary, is not permitted in a Catholic health care institution.

22 Procedures that induce sterility are permitted when their direct effect is the cure or alleviation of a

23 present and serious pathology and a simpler treatment is not available." (Id. (emphasis added).)

24 Directive 70 prohibits cooperation with direct sterilization: "Catholic health care organizations are not

25 11 Under the doctrine of ejusdem generis, any other acts must be similar in nature to the listed terms—"the kinds of
things that are listed in [the] series." Armin v. Riverside Comm. Hosp., 5 Cal.App.5th 810, 834 (2016). The ERDs are
26 nothing like the arbitrary socio-economic factors identified in Section 1258.
12 As Sacramento's diocesan Bishop Soto explains, "1 perform the triple apostolic functions of teacher of doctrine,

27 priest of sacred worship and pastor of church governance." And, "[u]nder Canon Law, 1 exercise my authority to bind
all Catholic health care institutions located within the Diocese to the ...ERDs." In turn, Bishop Soto himself "was
28 involved in the formulation and ... review[] [of] the Sterilization Policy" to assure that it "comports with [his]
interpretation of the ERDs." (Bishop Soto Decl. 5; Ex. 35.)
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DIGNITY HEALTH'S MOTION FOR SUMMARY JUDGMENT
 1 permitted to engage in immediate material cooperation in actions that are intrinsically immoral, such as

2 ... direct sterilization." (Ex. 2.)

3 D. Dignity Health and the Hospitals.

4 1. Dignity Health
1^
5 Dignity Health is a California nonprofit public benefit corporation and a Catholic hospital

6 system that operates 24 hospitals in California, Arizona, and Nevada. (Sr. O'Keeffe Decl., * 3.)

7 Dignity Health is "committed to furthering the healing ministry of Jesus" by delivering high-quality,

8 affordable health care services in a compassionate environment that is attuned to patients' physical,

9 mental, and spiritual needs.14 Dignity Health, previously named Catholic Healthcare West, was

10 founded in 1986 through the merger of Catholic hospitals sponsored by the Sisters of Mercy Auburn

11 and the Sisters of Mercy Burlingame. Other congregations of Catholic women religious joined later.

12 (Sr. O'Keeffe Decl., 4.) The Sponsoring Congregations and the Catholic Hospitals are listed in the

13 Official Catholic Directory ("OCD"). (UMF«! 5.)

14 Dignity Health's Bylaws during the relevant time period15 provide that Dignity Health is

15 committed to continuing "a healing ministry based on the life and works of Jesus in the provision of

16 healthcare services ..that Dignity Health's Catholic hospitals must follow the ERDs, and that its

17 officers may not facilitate procedures contrary to Catholic teaching. (UMF *| 6.)

18 Dignity Health's Bylaws also provide that Dignity Health will establish local Hospital

19 Community Boards, which have final authority to approve hospital policies, like the Sterilization

20 Policies. (Keith Decl., ^ 4.) Accordingly, the Sterilization Policies were approved by the respective

21 Hospital Community Boards, but were not presented for approval to the Dignity Health Board, nor was

22 the Dignity Health corporate office involved in their preparation or adoption. (UMF If 10; Id. * 5.)

23 2. The Hospitals.

24 Dignity Health's North State region is composed of three Catholic hospitals, MMCR. St.

25 Elizabeth, and Mercy Mt. Shasta. Dignity Health's Sacramento region includes three Catholic

26

27 13 Effective February 1, 2019, Dignity Health and Catholic Health Initiatives combined their health ministries to form

CommonSpirit Health, a new nonprofit Catholic health system. The brief will continue to refer to Dignity Health.
28 14 Dignity Health, Mission, Vision and Values, http://qa.dignitvhealth.org/cm/content/historv-and-mission.asp.

15 Dignity Health's current Bylaws are materially the same.

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DIGNITY HEALTH'S MOTION FOR SUMMARY JUDGMENT
 1 hospitals, Mercy General, Mercy San Juan, and Mercy Folsom.16 The Hospitals' mission is to

2 "furtherf] the healing ministry of Jesus."17 All of the Hospitals are dbas of Dignity Health.18

3 E. The Hospitals' Sterilization Policies and Medical Staff Bylaws.

4 Dignity Health does not have a single sterilization policy. Pursuant to Dignity Health's

5 Bylaws, the sterilization policy for each Dignity Health hospital (if any) is prepared at the local

6 hospital level and approved by the applicable local community board. (UMF18.) Each of the

7 Hospitals has a sterilization Policy (the "Sterizliation Policies") (UMF 1 9.) The Sterilization Policies

8 are materially the same and, in addition to the policy statement, contain a procedure through which a

9 physician may ask the hospital to consider allowing a tubal ligation by filling out a form for that

10 purpose. (Ex. 6.) The North State sterilization policies were adopted to adhere to the ERDs based on

11 the policy drafted by the mission leader in Sacramento in concert with Bishop Soto. (Ex. 19, 60:10-14;

12 Ex. 21,15:3-13.) The Catholic Hospitals' sterilization policies provide that the hospitals' "Mission is

13 accomplished in accordance with the teachings of the Roman Catholic Church ..., and is specifically

14 guided by the [ERDs], (Ex. 6.)19

15 MMCR's sterilization policy was approved by MMCR's Policy Review Committee, Ethics

16 Committee, Medical Executive Committee, and the North State Service Area Community Board.

17 (UMF Tf 10.) The governing documents of the independent Medical Staff20 of MMCR require that the

18 Medical Staff, including Dr. Van Kirk, must comply with the ERDs. (UMF f 7.) The Medical Staff

19
16 Petitioners have not identified any patient who has complained about being denied a sterilization at any of the

Sacramento Hospitals. (UMF <[[ 27.)

20 17 Mercy Medical Center Redding, Mission, Vision and Values, http://www.dignitvhealth.org/mercy-redding/about-

us/mission-vision-values).
21 18 https://apps.co.shasta.ca.us/fbn/asp/FBNDocDetail.asp?DocID=2017-0000143;

https://www.cdph.ca.gov/Programs/CHCQ/LCP/CalHealthFind/Pages/SearchResult.aspx?k=ST.%20ELIZABETH%20
22 COMMUNITY%20HOSPITAL&loc=;
https://www.cdph.ca.go v/Programs/CHCQ/LCP/CalHealthFind/Pages/SearchResult.aspx?k::::=ST.%20ELIZABETH%20
23 COMMUNITY%20HOSPITAL&loc=.
19 The purpose of the sterilization policy is to make clear that 'We [North State] do not do any sterilizations for the

24 purpose of contraception." (Ex. 19, 42:24-43:11.) MMCR has admitted Requests "when there is a medical necessity."
(M, 43:12-18.) a[I]n Catholic and moral teaching, you always have to look at the intent of the purpose. The intent is
25 never for contraception. The intent is to cure a present pathology that is there." (Id.) "Not every procedure that
induces sterility is done for the purpose of contraception. That's what the distinction is. We don't do them for
26 contraception. But when there is serious pathology we can do it." (Ex. 20, 178:4-12.)
20 A hospital must have "an organized medical staff responsible to the governing body for the adequacy and quality of the

27 care rendered to patients," which must adopt written bylaws establishing peer review processes to deal with physician
"staff applications and credentials, appointments, reappointments, assignment of clinical privileges, appeals mechanisms
28 and such other subjects . . . ." Cal. Code Regs., tit. 22, § 70703(a), (b). California hospitals cannot materially deviate
3S & from their medical staff bylaws. El-Attar v. Hollywood Presbyterian Med. Ctr., 56 Cal. 4th 976, 997 (2013).
7
DIGNITY HEALTH'S MOTION FOR SUMMARY JUDGMENT
 1 Bylaws state that "these Bylaws must conform to the [ERDs], as approved by the National Conference

2 of Catholic Bishops." (UMF ^ 7.) The Rules & Regulations of the Medical Staff, which also bind the

3 Medical Staff, state that "any procedure that results in sterilization must be performed according to

4 Hospital policies and procedures" and the "actions of the medical staff and its members, within the

5 facilities, departments and programs of the hospital, shall conform" to the ERDs. (Id.) The

6 sterilization policies for the Sacramento Hospitals also reflect approval by the respective Medical

7 Ethics Committees, the Medical Staffs Medical Executive Committees, and the Community Boards.

8 The Medical Staff Bylaws and Rules & Regulations for the other North State and Sacramento

9 Hospitals similarly require adherence to the ERDs. (UMF If 7.)

10 F. Petitioners
11 1. Chamorro
12 Chamorro wanted a postpartum tubal ligation for contraceptive purposes. (UMF Tf 24.) On

13 September 15, 2015, Dr. Van Kirk submitted a Request for Sterilization ("Request") on Chamorro's

14 behalf, noting her "desiref] to have a tubal ligation." (UMF ^ 25.) Consistent with its policy and the

15 ERDs, on September 18, 2015, MMCR denied the request. (UMF 126.) Chamorro knew that MMCR

16 is a Catholic hospital, but "the thought never crossed her mind" that Catholic hospitals might restrict

17 certain procedures. (Ex. 17, 13:8-14:15.) And, Dr. Van Kirk never bothered to explain the request

18 process to her or why a request was required. (Ex. 17, 29:11-30:2.)

19 2. PRH
20 PRH does not believe that Catholic hospitals should be permitted to restrict certain procedures

21 based upon religious doctrine or belief. (Ex. 18,20:1-11; 72:7-17; 110:8-19; 122:24-123:8.) Prior to

22 filing suit, PRH had not received any complaints regarding MMCR from physicians or patients (id.,

23 32:4-22; 119:13-21; 138:1-21), nor could PRH identify any instance where a member complained about

24 the sterilization policy at MMCR (Id., 62:6-16). •

25 G. Dr. Van Kirk ___ _

Dr. Van Kirk was Chamorro's, and ||||||||||||||||||^^ obstetrician. (Ex. 17,
26
17:11-14; 19:24-20:4; Pet, f 57, Ex. 3.) He referred each of them to the ACLU after MMCR denied
27
his Requests for Sterilization on their respective behalves. (Ex. 36, 7:1-15; Ex. 17, 35:17-36:5; Pet.,
28
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DIGNITY HEALTH'S MOTION FOR SUMMARY JUDGMENT
 1 Ex. 4.)

2 Like PRH, Dr. Van Kirk believes that tubal ligations should be available on demand at MMCR,

3 and objects to MMCR's request and review procedure.21 (Ex. 36, 14:6-9; 116:2-120:11.) Dr. Van

4 Kirk understands that MMCR is a Catholic hospital, and that his practice there must follow the

5 ERDs.22 {Id, 15:19-16:5.) Dr. Van Kirk has had repeated conversations with Sr. O'Keeffe, Vice

6 President of Mission Integration for the North State Hospitals, and Dr. James De Soto, the Vice

7 President of Medical Affairs for the North State Hospitals, regarding MMCR's sterilization policy.

8 Those discussions began when he joined MMCR's Medical Staff in 2010, when Sr. O'Keeffe

9 explained to him that a written request from the physician was required. {Id., 49:22-52:25; Ex. 23,

10 48:3-49:6.) These discussions continued, through and including receipt of a detailed email on the

11 subject from Dr. De Soto two months before this lawsuit was filed. (Pet., Ex. 6.)

12 Ultimately, Dr. Van Kirk admitted that Dr. De Soto "provide[d] a list of medical indications to

13 consider." Id. But because Dr. Van Kirk believes "there are no medical indications for sterilization

14 other than the patient's desire to have a tubal ligation performed" he routinely does not include such

15 medical indications in the Requests he submits on behalf of his patients. (Ex. 36, 53:10-24; 57-58:23;

16 20:18-24; 104:1-14; 109:9-120:11.) Thus, ignoring MMCR's direction, Dr. Van Kirk never reviews

17 his patients' medical records because he personally believes such information is irrelevant, nor does he

18 identify the medical information that the hospital has requested to determine whether to allow a tubal

19 ligation procedure. {Id, 99:10-100:7; 120:-121:11; 122:17-21; Ex. 37.)

20 Dr. Van Kirk even refuses to use MMCR's Request form, and instead uses his own pre-printed

21 form with an electronic signature, which his medical assistant prepares. (Ex. 36, 89:1-90:18; 124:6-9;

22 Ex. 37.) Although the physical condition of each of his patients is different, every request submitted

23 by Van Kirk is materially identical - down to the same typographical error. (Ex. 37; Ex. 36, 97:7-24;

24 123:18-23.) For example, Dr. Van Kirk provided identical information regarding "medical

25 indications" and other factors for

26
21 Dr. Van Kirk advertises that he can provide "Permanent Sterilization" in his office: "we can 'tie tubes' in the office,
27 without an incision, and without going to sleep." Ex. 31.
22 Dr. Van Kirk admitted that, to become a member of MMCR's medical staff, he agreed to follow the Medical Staff

28 Bylaws and its Rules & Regulations. (Ex. 36, 42:9-44:3; 45:24-47:22; Exs. 14 and 15, No. 7.) Dr. Van Kirk knows
5S & that sterilization procedures at MMCR require approval by the Facility Review Committee. (Ex. 36, 24:4-18.)
P 9
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DIGNITY HEALTH'S MOTION FOR SUMMARY JUDGMENT
 1 |. (Ex. 37; Ex. 14, Nos. 30, 21, 33-34; Pet, If 58.)

2 H. Dr. Jackson

3 Like PRH and Dr. Van Kirk, Dr. Jackson believes there should be no restrictions on the

4 availability of postpartum tubal ligations if a healthy patient over the age of majority wants one.

5 However, Dr. Jackson merely confirmed what Dignity Health has been saying all along. When

6 rendering her opinion and written report, Dr. Jackson did not consider the second paragraph of Section

7 1258, which permits health facilities to consider the physical condition of the patient, and did not

8 understand what it means. (Ex. 27, 8; Ex. 26, 100:15-103:25.) Dr. Jackson agreed that the Hospitals

9 do not consider the number of children a patient has, and that advanced maternal age can be a risk

10 factor for uterine rupture. (Ex. 26, 43:17-22; 155:22-156:8.) Dr. Jackson further testified that from her

11 perspective the Hospitals appear to review the patients' medical history, i.e., the "physical condition of

12 the patient," however, she could not know the Hospital's "purpose" in permitting an exception to its

13 sterilization policy. {Id., 111:12-112:19; 184:6-185:23; 229:15-23.) Dr. Jackson also testified that

14 contraceptive devices may be used for purposes other than contraception, and that patients may seek

15 remedies that have a contraceptive effect for reasons other than contraception. (Ex. 26, 81:19-82:6;

16 109:15-109:4.)

17 I. The Review Process and Decision.

18 1. North State Catholic Hospitals.
19 The MMCR Sterilization/Facility Review Committee includes Sr. O'Keeffe, Dr. De Soto, and

20 the Chief Nurse Executive. (UMF If 15.) The committees at the other North State Hospitals are

21 similarly comprised of a Mission representative, a physician, and a nurse. (Ex. 21, 24:24- 25:5; 27:23­

22 29:5.) The Committee meets once or twice a month to review Request forms submitted by physicians.

23 (Ex. 19, 21:21-22:9.) The physicians are responsible for completing the Requests and identifying any

24 medical indications they believe are relevant to the Request based upon their knowledge of their

25 patient's medical history. (Ex. 19, 52:13-53:13; 71:14-20.) The Committee performs a case-by-case

26 review to ascertain the purpose of the requested procedure by looking "at what is documented by the

27 physician" to "achieve a consensus about whether the requests for sterilization might meet medical

28
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DIGNITY HEALTH'S MOTION FOR SUMMARY JUDGMENT
 1 necessity or are instead, just a request for contraceptive tubal ligation."23 (UMF ^ 16 and 18.) Dr. De

2 Soto testified that he reviews the medical information submitted by the physician, and Sr. O'Keeffe

3 focuses upon whether the Request fits within the Sterilization Policy. (Ex. 22, 20:23-21:2; Ex. 19,

4 34:12-15; 35:5-7.) If the Committee denies a request, the physician receives a letter asking for any

5 additional information that has not already been provided, and stating that the Request may be

6 resubmitted. (Ex. 19, 40:5-18.)

7 Dignity Health produced over 3660 pages of documents reflecting the requests for sterilization

8 and responses at MMCR from April 1, 2015 through July 31, 2017, and the requests and related

9 responses submitted to the other North State and Sacramento Hospitals in 2017. Landsberg Decl., *1

10 34. The documents produced reflect that the North State hospitals only consider the physical condition

11 of the patient in connection with determining whether to allow a tubal ligation.

12 2. Sacramento Catholic Hospitals.

13 Requests at the Sacramento Hospitals are reviewed by a physician and mission leader who meet

14 every two weeks. (Ex. 24, 21:14-22:4; 22:18-19.) The purpose of the review process is to determine

15 whether there are sufficient medical reasons to permit the procedure. (UMF 17). In Sacramento,

16 physicians are required to submit the prenatal record, as well. The purpose of the sterilization policies

17 is to support compliance with the ERDs. (Id., 46:10-23.) The hospital's intent in admitting a

18 procedure is to address a "present and serious pathology." (Id., 70:7-25.) Michael Cox testified, and

19 the documents reflect, that tubal ligation procedures are allowed if the procedure addresses a health

20 risk for the patient.24 (Id., 38:15-39:20.)

21 III. SUMMARY JUDGMENT SHOULD BE ENTERED.

22 A. Section 1258
23 Health & Safety Code section 1258 provides:
No health facility which permits sterilization operations for contraceptive purposes to be
24
23 In addition to the factors identified for by Dr. De Soto in October 2015 (Petition, Ex. 6), other factors considered may
25 include placenta accreta. history of uterine rupture, diabetes mellitus, heart disease, multiple scars in the uterus, a single
uterine scare with factors that may have retarded hearing of the scar, congestive heart failure, or renal failure. (De Soto,
26 6/21 33:22-34:21; 6/21 52:13-23.) "[T]he purpose or the reason and the moral intent is never for contraception, but rather
is there a medical necessity to really be able to do this for the patient at that time." (6/21 76:3-16.)
27 24 As Dr. Carolina Reyes testified, the Sacramento Hospitals consider factors that could compromise a patient in a

subsequent pregnancy, including chronic medical conditions like diabetes and hypertension, myomectomy, prior
28 caesarian sections, collagen vascular disorders, cardiovascular conditions, prior myocardial infarctions, strokes, or
chemotherapy, and other medical conditions that affect the major organs. (Reyes, 30:2-31:7.)
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DIGNITY HEALTH'S MOTION FOR SUMMARY JUDGMENT
 1 performed therein, nor the medical staff of such health facility, shall require the individual
upon whom such a sterilization operation is to be performed to meet any special nonmedical
2 qualifications, which are not imposed on individuals seeking other types of operations in the
health facility. Such prohibited nonmedical qualifications shall include, but not be limited to,
3 age, marital status, and number of natural children.

4 Nothing in this section shall prohibit requirements relating to the physical or mental
condition of the individual or affect the right of the attending physician to counsel or
5 advise his patient as to whether or not sterilization is appropriate. This section shall
not affect existing law with respect to individuals below the age of majority.
6 (Emphasis added.)
B. The Hospitals Have Never Been Cited For Violating Section 1258
7
Section 1258 is a facility-specific licensing statute enforced by the California Department of
8
Public Health ("CDPH") through its district offices as well as by the district attorney.25 Health & Saf.
9
Code §§1290,1293; Cal. Code Regs., tit. 22, § 70135(a). CDPH requires that every hospital have its
10
own license,26 that the hospital license be renewed on an annual or biannual basis, and that the hospital
11
be inspected at least every two years, at which point CDPH notifies the hospital of any deficiencies in
12
compliance with licensing statutes and regulations. Cal. Code Regs., tit. 22, §§ 70101(c), 70103, 70117.
13
CDPH has issued regulations governing sterilization procedures. Cal. Code Regs., tit. 22, § 70707.2.
14
CDPH has the power, expertise, and statutory mandate to regulate and enforce Section 1258, and yet it
15
has never cited any of the Hospitals for a violation of Section 1258. O'Keeffe Decl., f 16; Cox Decl., 11.
16
C. The Hospitals' Quasi-Legislative Decisions Are Afforded the Highest Levels
17 of Judicial Deference.

18 Petitioners contend that the sterilization policies, and the Hospitals' application of the

19 sterilization policies, violate Section 1258. The Court evaluates the sterilization policies "on [their]

20 face because legislative discretion is not subject to judicial control and supervision." San Joaquin

21 Local Agency Formation Com 'n v. Sup. Ct., 162 Cal. App. 4th 159, 171 (2008). The "general rule" is

22 that "the court should not substitute its judgment for that of an administrative agency which acts in a

23 quasi-legislative capacity." Pitts v. Perluss. 58 Cal. 2d 824 8'!2 (1962); see also St. Bd. of

24 Chiropractic Examiners v. Sup. Ct., 45 Cal. 4m 9o3, 977 (2009) ("Writ review under Code of Civil

25 Procedure section 1085 is even more deferential" than review in administrative mandate cases.)

26 This rule "is also appropriately applied to judicial review of rule-making or policy-making

27 25 Members of the public can easily report alleged violations to the CDPH here:
https://hfcis.cdph.ca.gov/LongTermCare/ConsumerComplaint.aspx.
28 26 Each of the Hospitals' respective licenses may be found here:

3S
https://www.cdph.ca.gov/programs/chca/lcp/calhealthfind/Pages/Home.aspx.
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DIGNITY HEALTH'S MOTION FOR SUMMARY JUDGMENT
 1 actions of a nonprofit hospital corporation." Lewin, 82 Cal. App. 3d at 384. Deference to hospital

2 decisions is due "in large part" to the fact that the hospital's actions "substantially affect the public

3 interest," as well as because of the "presumed expertise of administrative agencies in respect to matters

4 within their jurisdiction." Id. at 384-385 ("A managerial decision concerning the operation of the

5 hospital made rationally and in good faith by the board to which operation of the hospital is committed

6 by law should not be countermanded by the courts unless it clearly appears it is unlawful. .see

7 also Mateo-Woodbum v. Fresno Community Hosp. & Med. Ctr., 221 Cal. App. 3d 1169, 1184 (1990)

8 ("An important public interest exists in preserving a hospital's ability to make managerial and policy

9 determinations and to retain control over the general management of the hospital's business.").

10 As the Lewin court noted:

The operation and administration of a hospital involves a great deal of technical and
11 specialized knowledge and experience, and the governing board of a hospital must be
presumed to have at least as great an expertise in matters relating to operation and
12 administration of the hospital as any governmental administrative agency with respect to
matters committed to its authority.... Judges are untrained and courts ill-equipped for
13 hospital administration, and it is neither possible nor desirable for the courts to act as
supervening boards of directors for every nonprofit hospital corporation in the state
14
Lewin, 82 Cal. App. 3d at 384-85. There is nothing arbitrary, capricious, or unlawful about a Catholic
15
hospital adopting a sterilization policy that complies with the ERDs, which the Hospitals are required
16
to follow. Dignity Health's Catholic Hospitals have functioned this way for many decades.
17
Moreover, the Hospital's review process, which considers only medical risk factors related to
18
the physical condition of the patient, also complies with Section 1258's express terms. The Hospitals
19
have discretion to adopt any policy or practice lawful under Section 125 8.27 Civ. Proc. Code § 1085(a)
20
(a traditional writ of mandamus may only be brought to "compel performance of an act which the law
21
specifically enjoins"); Ridgecrest, 130 Cal. App. 4th at 1003 ("the District was obligated to follow the
22
law ... but how it did that was largely a matter committed to its discretion"). No mandamus lies to
23
compel the Hospitals to exercise their discretion within the law in any particular way. See Ellena v.
24
Dep't of Ins., 230 Cal. App. 4th 198, 205 (2014) ("a party may not invoke mandamus to force a public
25
entity to exercise discretionary powers in any particular manner"); California Water Impact Network v.
26
Newhall Cty. Water Dist., 161 Cal. App. 4th 1464, 1483-84 (2008) (same).
27

28
27 The Hospitals' sterilization policies were lawfully adopted. See Keith Decl, 4-5; UMF 10.
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 1 D. The Sterilization Policies and the Review Process Do Not Violate Section 1258.

2 1. Section 1258 Does Not Require Health Facilities to Permit Sterilization

Procedures for Contraceptive Purposes.
3
As noted, Section 1258 applies to hospitals that permit sterilizations procedures for
4
contraceptive purposes but deny them when a patient does not meet nonmedical criteria such as a
5
number of children, age or a combination of both. In contrast, Section 1258 does not apply to the
6
Hospitals which prohibit sterilizations, but may permit them for patients that meet certain medical
7
criteria based upon the physical or mental condition of those patients. As the California Attorney
8
General's website recognizes "private hospitals can refuse to perform sterilizations, as well as
9
abortions, in their facilities."28 (Exs. 14 and 15, RFA Nos. 14 and 15.)
10
2. The Hospitals Do Not Permit Sterilization Operations for
11 Contraceptive Purposes; Therefore, Section 1258 Does Not Apply.

12 The Hospitals' sterilization policies uniformly state that "tubal ligation or other procedures that

13 induce sterility for the purpose of contraception are not acceptable in Catholic moral teaching." (UMF

14 112.) Likewise, Dignity Health's witnesses uniformly testified that the Hospitals never permit

15 sterilization procedures for contraceptive purposes, and that the Hospital's only "purpose" is to address

16 medical risks to the mother. (UMF ^ 16 and 18.)

17 Petitioners' contention that the purpose of a tubal ligation is always contraceptive because tubal

18 ligation prevents pregnancy conflates the purpose of a tubal ligation with its effect. While the effect of

19 a tubal ligation may be contraceptive, that does not mean that a Catholic hospital's purpose in

20 permitting the procedure is contraceptive. The same point is true of a hysterectomy. The effect of a

21 hysterectomy is contraceptive in that it forecloses pregnancy. However, the purpose of a hysterectomy

22 may be to treat uterine cancer. Similarly, the effect of a tubal ligation may be contraceptive, but its

23 purpose may be to avoid life threatening conditions such as uterine rupture associated with a future

24 pregnancy in women whose medical history discloses specific medical risk factors. Likewise, the

25 hospital's purpose (which is the only purpose relevant to a hospital licensing statute) may not be the

26 same as the purpose of the patient or her physician. {See, e.g., Ex.26, 229:2-23.) While the patient

27 28 http://ag.ca.gov/publications//womansrights/ch5.php#5 2. Thus, whether "hospital policies that prohibit immediate

postpartum tubal ligations prevent physicians from providing their female patients with the standard of care" is
28 irrelevant to this action. (Petition, ^ 38.). This is not a standard of care case; the issue is whether a hospital's quasi-
legislative policy violates a statute.
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DIGNITY HEALTH'S MOTION FOR SUMMARY JUDGMENT
 1 may seek a tubal ligation as contraception, the hospital's purpose in permitting the procedure may be

2 to avoid the risk of uterine rupture. The testimony of Dignity Health witnesses confirms that tubal

3 ligations are permitted only when the physical condition of the patient discloses that a tubal ligation

4 will prevent serious and potentially life-threatening conditions.

5 This difference between purpose and effect is expressly recognized in Health & Saf. Code §

6 1367.25(e). Section 1367.25(c) provides an exemption for religious employers from the requirements

7 that they provide contraceptive products through the health plan offered their employees. However,

8 Section 1367.25(e) provides that the exemption does not apply to "contraceptive supplies as prescribed

9 by a provider ... for reasons other than contraceptive purposes, such as decreasing the risk of ovarian

10 cancer or eliminating symptoms of menopause " See also Ins. Code § 10123.196(g) (same).

11 "[WJords should be given the same meaning throughout a code unless the Legislature has

12 indicated otherwise." Hassan v. Mercy Am. River Hosp,, 31 Cal. 4th 709, 716 (2003). The

13 administration of contraceptive supplies will invariably have a contraceptive effect, but if they are

14 prescribed for the purpose of decreasing an unrelated medical risk to the insured, then the Legislature

15 has declared such supplies are not provided for a "contraceptive purpose." Health & Safety Code §

16 1367.25(e). The same thing is true here. The Hospital's purpose is not contraceptive. Accordingly,

17 Section 1258 simply does not apply and summary judgment should be entered for this reason alone.
3. The Hospitals Consider Medical Risk Factors and Physical
18
Conditions; Therefore, the Hospitals Do Not Violate Section 1258.
19 In addition, the Hospitals do not violate Section 1258 because Section 1258 expressly permits
20 health facilities to impose "requirements relating to the physical or mental condition of the individual."
21 The Hospitals' review, focused upon medical risk factors and the patient's physical condition, is
22 squarely within the conduct permitted by the statute.
23 Dignity Health's Catholic Hospitals do not use the paternalistic 120 point system, or any other
24 •
ratios based on age and/or number of children.
9Q
(UMF f 19.) Nor do the Hospitals consider the
25 patient's marital status. The review committees are focused upon the patient's physical condition
26

27

28
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DIGNITY HEALTH'S MOTION FOR SUMMARY JUDGMENT
 6 6 OA
1 including "risk factors for uterine rupture," such as the number of prior uterine scars (C-sections),

2 which may present health risks in future pregnancies. (UMF Tff 16, 18-23.) Thus, they do consider

3 "advanced maternal age [which] is an independent risk factor for certain adverse outcomes in

4 pregnancy."31 (UMF 20-21.) There is also a further increased risk of uterine rupture when

5 multiparity (the number of times a woman has given birth) is combined with multiple uterine scars,

6 and advanced maternal age may be "a risk factor for healing of that scar." (UMF ^ 23.) Dr. Van Kirk,

7 himself, considers a patient's "advanced maternal age" a medical risk factor, and he informs all

8 patients 35 years or older that they will be referred for a genetic consult.32 (UMF ^ 21). Dr. Jackson,

9 too, agrees. (Ex. 26, 37:6-10; 143:22-144:8.)

10 Advanced maternal age and multiparity are medical factors relating to the physical condition of

11 the patient which are not the same as age and number of children. The legislative history of Section

12 1258 confirms that the statute allows consideration of medical factors in connection with a request for

13 an exception to a hospital's sterilization policy. The statute prevents hospitals from applying socio­

14 economic, non-medical? factors to prohibit sterilization. See Lackner? 124 Cal. App. 3d at 37.

15 4. The ERDs are Not a Nonmedical Qualification Imposed on Patients.

16 Petitioners' claim that the ERDs constitute such a nonmedical qualification fails. Section 1258

17 prohibits a health facility from requiring an "individual" seeking a sterilization operation "to meet any

18 special nonmedical qualifications, which are not imposed on individuals seeking other types of

19 operations in the health facility." But, the ERDs are not a qualification that an individual must "meet"

20 when seeking a tubal ligation. The ERDs are directives, not qualifications, which are imposed on
30 The Sacramento Hospitals consider advanced maternal age as a potential risk factor, and do not consider the number of
21
children a patient has. (Ex. 24, 44:9-25.) Consistent with the ERDs, a patient's insurance is considered only if the
Request would otherwise be approved based upon medical considerations, but the patient has insurance at a nearby non-
22 Catholic hospital where the patient's physician also has privileges thereby ensuring that the patient may obtain the
procedure if medically indicated. (Ex. 24, 30:18-31:12; 74:4-75:11.) The Legislature has enacted other statutes
23 recognizing that religious healthcare providers may not be forced to perform procedures that violate religious principles.
See, e.g., Probate Code § 4734(b) ("A health care institution may decline to comply with an individual health care
24 instruction or health care decision if [it] is contrary to a policy of the institution that is expressly based on reasons of
conscience . . ."); Bus. & Prof. Code § 733(b)(3); Health & Saf. Code § 123420; Brownfield v. Daniel Freeman Marina
25 Hosp., 208 Cal. App. 3d 405, 409 n.2 (1989); Conservatorship of Morrison, 206 Cal. App. 3d 304, 31 1 (1988).
31 http://humrep.oxfordiournals.Org/content/l 5/11/2433.long. One study found the risk of uterine rupture is three times

26 as high for women over 30 years old. https://www.ncbi.nlm.nih.gov/pubmed/12039116.

32 Dr. Van Kirk testified that "para," "grava," "grand multiparity" and "advanced maternal age are all medical terms.

27 Ex. 36, 92:17-19; 90:19-91:2; 115:12-17.)

33 It makes no difference whether Petitioners agree with the Hospitals' practice, or whether Petitioners dispute the

28 existence of a "present and serious pathology," as that concept is not part of Section 1258, which does not regulate how
5S
a health facility may consider the physical or mental condition of the patient.
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DIGNITY HEALTH'S MOTION FOR SUMMARY JUDGMENT
 1 Catholic health care providers, not "individuals". (UMF ^ 2.) Consistent with these directives, the

2 Dignity Health Bylaws, the MMCR Bylaws, and the MMCR Rules & Regulations of the Medical Staff

3 all uniformly provide that all care provided at MMCR shall conform to the ERDs. (UMF % 7.) To the

4 extent adherence to the ERDs has any effect on patients, the ERDs apply to all patients, including

5 affirming the rights to pastoral care, confidentiality, and respect and protection for the "inherent dignity

6 of the human person" regardless of health or social status, and mandating informed consent (Ex. 2,

7 Directives, 10, 23, 26, and 34.) The ERDs also prohibit other procedures, including fertility

8 treatments, abortion, or euthanasia. (Id, Directives 41, 45, 60.) Thus, because the ERDs are rules that

9 apply institutionally to the Hospitals and also apply to "other types of operations in the health facility"

10 compliance with the ERDs is not barred by Section 1258.34

11 E. Dignity Health is Immune From Liability for Declining Requests for

Sterilization Based on Reasons of Conscience.
12
Neither the sterilization policies nor the Hospitals' practice violates Section 1258. Petitioners,
13
at bottom, oppose the Hospitals' free exercise of their religious beliefs. As Dr. Jackson opined,
14
"although the Dignity Health hospitals consider 'medical indications,' it is a religious figure - or
15
someone whose job it is to interpret the ERDs - who is the ultimate decision maker about whether a
16
doctor is able to perform a postpartum tubal ligation on a patient." (Ex. 27, ]f 59; Ex. 26,48:9-23;
17
189:7-15.) However, Dignity Health is afforded immunity for its good faith refusal of Requests based
18
upon the ERDs.
19
Probate Code section 4734(b) provides, "A health care institution may decline to comply with
20
an individual health care instruction or health care decision if the instruction or decision is contrary to a
21
policy of the institution that is expressly based on reasons of conscience and if the policy was timely
22
communicated to the patient or to a person then authorized to make health care decisions for the
23
patient." There is no claim that Dignity Health failed to timely respond to Requests for Sterilization.
24
MMCR responded to Van Kirk's request on Chamorro's behalf in three days, nearly five months
25
before her expected delivery. (Ex.37.)
26
Probate Code Section 4740(d) provides that a health care provider that declines to comply with
27

28 The Legislature presumably was aware that Catholic hospitals had been operating in California for over 150 years
34

when it enacted Section 1258.

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DIGNITY HEALTH'S MOTION FOR SUMMARY JUDGMENT
 1 an individual health care instruction for reasons of conscience, "acting in good faith and in accordance

2 with generally accepted health care standards applicable to the health care provider or institution," "is

3 not subject to civil or criminal liability." Petitioners have never questioned the Hospitals' good faith;

4 they oppose the Hospital's faith-based decisions, which were timely communicated to the requesting

5 physicians. Aside from the fact that the Court should not adjudicate a claim that Petitioners admit
or

6 challenges the Hospitals' interpretation of the ERDs, the Court does not have to. As Petitioners

7 concede they are suing based upon the Hospitals' declining to comply with an individual health care

8 instruction for reasons of conscience based upon their religious beliefs, including the requirement that

9 they adhere to the health care standards set forth in the ERDs, Dignity Health is entitled to judgment.

10 F. The Relief Petitioners Seek Would Violate the State and Federal Constitutions.36
11
The right to free exercise of religion is enshrined in the state and federal constitutions. Cal.
12
Const, art. I, § 4 ; U.S. Const., 1st Am.; People v. Woody, 61 Cal. 2d 716, 727 (1964) ("the right to
13
free religious expression embodies a precious heritage of our history"); see also Masterpiece
14
Cakeshop, Ltd. v. Colorado Civil Rights Comm'n, 138 S. Ct. 1719, 1727 (2018) (noting that the clergy
15
members who object to gay marriage on moral and religious grounds could not be compelled to
16
perform the ceremony without denial of his or her right to the free exercise of religion).
17
The California Supreme Court has applied strict scrutiny to state laws that burden a defendant's
18
religious beliefs under the California Constitution. Catholic Charities of Sacramento v. Sup. Ct., 32
19
Cal. 4th 527, 562 (2004); North Coast Women's Care Med. Grp. v. Sup. Court, 44 Cal. 4th 1145, 1158­
20
59 (2008); Smith v. FEHC, 12 Cal. 4th 1143, 1178 (1996). Under strict scrutiny, no law (or court order)
21
can be applied "in a manner that substantially burdenjs] a religious belief or practice unless the state
22
show[s] that the law represents] the least restrictive means of achieving a compelling interest or, in
23
other words, [is] narrowly tailored." Catholic Charities, 32 Cal.4th at 562. Here, Plaintiffs plainly seek
24
to force the Hospitals to violate the ERDs. However, the Hospitals could not comply with such an order
25 35 Means, 2015 WL 3970046, at *12 ("application of the [ERDs]" is "inextricably intertwined with the Catholic
Church's religious tenets"); New v. Kroeger, 167 Cal. App. 4th 800, 815 (2008) ("Civil courts cannot interfere in
26 disputes relating to religious doctrine, practice, faith, ecclesiastical rule, discipline, custom, law, or polity"); EEOC v.
Catholic Univ. of Am., 83 F. 3d 455, 463 (D.C. Cir. 1996) ("the Free Exercise Clause guarantees a church's freedom to
27 decide how it will govern itself, what it will teach, and to whom it will entrust its ministerial responsibilities. . .").
36 Because Petitioners present no triable claim for a violation of Section 1258, the Court need not reach the con­

28 stitutional problems posed by Petitioners' claim. People v. Pantoja, 122 Cal. App. 4th 1, 10 (2004) ("we do not reach
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constitutional questions unless absolutely required to do so to dispose of the matter before us")(citation omitted).
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DIGNITY HEALTH'S MOTION FOR SUMMARY JUDGMENT
 1 without forsaking their Catholic identity—the ultimate burden in a religious freedom case - and any

2 such action would lead to enforcement of the ERDs by the local Catholic Bishop, who could formally

3 withdraw the Hospital's Catholic status and sanction the women religious who administer the hospital.

4 Moreover, Plaintiffs cannot demonstrate any compelling state interest sufficient to override MMCR's

5 constitutional religious freedoms. The minimal impact on the state's interest - if any such interest exists

6 in light of Probate Code section 4740 - is far outweighed by MMCR's constitutional rights. See

7 Woody, 61 Cal.2d at 727 (in such cases, "[t]he scale tips in favor of the constitutional protection").

8 Thus, courts uniformly recognize that private religious hospitals and physicians may not be

9 forced to provide procedures contrary to their religious principles.37 To the extent that Petitioners

10 argue that the Hospitals' practice does not strictly comply with the Sterilization Policies, that is a

11 matter of interpretation of the ERDs and interference with Catholic doctrine which is entirely

12 unnecessary because the practice does not violate Section 1258. It is neither necessary nor appropriate

13 for the Court to sit in judgment of the ERDs or how they are interpreted by a Catholic health facility.

14 That is a religious question beyond this Court, not a question of statutory interpretation, and Dignity

15 Health's free exercise rights are well-established and paramount. Hosanna-Tabor Evangelical

16 Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171, 189 (2012) ("the text of the First Amendment

17 itself[] gives special solicitude to the rights of religious organizations")

18 IV. CONCLUSION.
19 Petitioners never sought to pursue a claim that the Hospitals' sterilization policies are

20 prohibited age/parity stipulations. After dismissing all of Petitioners' discrimination claims, the Court

21 permitted Petitioners to pursue a single claim regarding the Hospitals' "decision to allow or disallow

22
37 Taylor v. St. Vincent's Hosp., 523 F.2d 75, 77 (9th Cir. 1975) ("If the hospital's refusal to perform sterilization infringes
23 upon any constitutionally cognizable right to privacy, such infringement is outweighed by the need to protect the freedom
of religion of denominational hospitals 'with religious or moral scruples against sterilizations and abortions'") (citation
24 omitted); Watkins v. Mercy Med. Ctr., 364 F. Supp. 799, 803 (D. Idaho 1973) ("Mercy Medical Center has the right to
adhere to its own religious beliefs and not be forced to make its facilities available for services which it finds repugnant..
25 ."), aff'd, 520 F.2d 894 (9th Cir. 1975); Allen v. Sisters of St. Joseph, 361 F. Supp. 1212, 1214 (N.D. Tex. 1973) (the
public interest "in the establishment and operation of hospitals by religious organizations is paramount to any
26 inconvenience that would result to the plaintiff in requiring her to either be moved or await a later date for her
sterilization"), appeal dismissed, 490 F.2d 81 (5th Cir. 1974); Conservatorship of Morrison, 206 Cal. App. 3d 304, 311
27 (1988) ("[N]o physician should be forced to act against his or her personal moral beliefs if the patient can be transferred to
the care of another physician who will follow the [patient's] direction"); Chrisman v. Sisters of St. Joseph of Peace, 506
28 F.2d 308, 312 (9th Cir. 1974) ('"There is no constitutional objection to the decision by a purely private hospital that it will
3S not permit its facilities to be used for the performance of abortions'") (citation omitted)
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DIGNITY HEALTH'S MOTION FOR SUMMARY JUDGMENT
 1 tubal ligations based on 'advanced maternal age' and 'grand multiparity.'" (Ex. 11.) However, there

2 was never any basis to that claim because, as Dignity Health has contended from the start, the

3 Hospitals do not allow such procedures for a contraceptive purpose. The Catholic Hospitals consider

4 only medical qualifications and the physical conditions of the individual seeking a tubal ligation.

5 Consequently, the Hospitals' policies and procedures fully comply with Section 1258. After three

6 years of litigation, it is time to again heed Judge Goldsmith's practical warning that this fight is a dead

7 end for Petitioners. Aside from the fact that the Hospitals' current practice is lawful, the alternative is

8 not unrestricted tubal ligations on demand, but the outright cessation of tubal ligation procedures

9 altogether. (Ex. 9, 23:21-26; 24:5-8, "the hospital here in Redding can say we're not going to deliver

10 babies anymore if we're going to get involved in this").

11 The undisputed factual record establishes that neither the sterilization policies nor the

12 Hospitals' practice violate Section 1258. Moreover, beyond the evidentiary record establishing that

13 the Hospitals' policies and practices are entirely lawful, lies nothing more than an unconstitutional

14 attack on religious freedom, which the Court should avoid reaching based on the absence of any basis

15 for a mandamus writ to issue on the Section 1258 claim. The ACLU, PRH, Dr. Jackson, and Dr. Van

16 Kirk do not believe that private faith-based hospitals that have operated in California without legal

17 controversy for many years should be permitted to comply with binding religious doctrine. Petitioners

18 want the Court to regulate and change (with injunctive oversight), but there is no legal basis for their

19 claim.

20 The Hospitals' policies and practices comply with Section 1258 as a matter of law. The Court

21 should grant Dignity Health's motion for summary judgment, and enter judgment in favor of Dignity

22 Health.

23 Dated: April 5, 2019 MANATT, PHELPS & PHILLIPS, LLP

24

25 By:
Barry S. ^andsberg
26 Attorneys for Defendant
DIGNITY HEALTH dba MERCY MEDICAL
27 CENTER REDDING
28
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DIGNITY HEALTH'S MOTION FOR SUMMARY JUDGMENT