Order: REBECCA CHAMORRO ET AL VS. DIGNITY HEALTH ET AL

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Preview
                                Prepared by the Court

San Francisco County Superior Court
APR 3.0 2020

CLERK OF THE COURT
BY: Deputy Clerk

SUPERIOR COURT OF CALIFORNIA
County of San Francisco

Department No. 505

REBECCA CHAMORRO and PHYSICIANS |No. CGC-15-549626
FOR REPRODUCTIVE HEALTH,
ORDER DENYING RESPONDENT DIGNITY
Petitioners, HEALTH’S MOTION FOR SUMMARY
JUDGMENT
v.
DIGNITY HEALTH,
Respondent.

Hearings were held on July 22, 2019 and November 19, 2019 on the motion for summary
judgment filed by respondent Dignity Health seeking to adjudicate in its favor the sole remaining
claim of petitioners Rebecca Chamorro and Physicians for Reproductive Health for violation of
Health and Safety Code 1258. At both hearings Elizabeth Gill, Christine Haskett, Michael

Greenberg and Sara Sunderland appeared for petitioners and Barry Landsberg, Harvey Rochman

Page 1and Craig Rutenberg appeared for Dignity Health. At each hearing I made oral rulings rejecting
certain arguments made by Dignity Health and at the November 19 hearing I orally denied
Dignity Health’s motion for summary judgment. I now issue this order memorializing those oral
rulings.

There is a triable dispute whether Dignity Health “permits sterilization operations for
contraceptive purposes” at its Catholic hospitals as the quoted phrase is used in section 1258.
(Compare Dignity Health’s Fact 18 with the report and deposition testimony of petitioners’
expert Rebecca Jackson). In making this determination I reject Dignity Health’s argument that
whether an operation is “for contraceptive purposes” is to be determined solely from the
viewpoint of the “health facility” (in this case, Dignity Health). The proper construction of
section 1258 requires that the determination of whether an operation is “for contraceptive
purposes” is made by looking at all facts and circumstances pertaining to the operation, and not
solely on the viewpoint of either the health facility or the patient or her physician, based on an
objective standard grounded in medical literature on sterilization operations.

There is a triable dispute whether Dignity Health requires its patients seeking postpartum
tubal ligations to meet one or more “special nonmedical qualifications” as the quoted phrase is
used, in section 1258. (Report and deposition testimony of Dr. Jackson). In making this
determination, in accordance with the express language of section 1258, I construe that statute as
prohibiting the determination of whether to permit a sterilization operation based on a patient’s
age, marital status or number of children.

I reject as a matter of law Dignity Health’s argument that section 1258 prohibits only
arbitrary “special nonmedical qualifications.” Nothing in the language or the legislative history

of that statute limits the reach of section 1258 only to consideration of arbitrary factors.

Page 224

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[also reject as a matter of law Dignity Health’s argument that Probate Code 4734(d)
applies to a request by a competent adult patient seeking a sterilization operation. The text and
legislative history of the Uniform Health Care Decisions Act, Probate Code 4670 et. seq., which
subsection 4734(d) is a part, most especially the California Law Revision Commission report on
that Act, shows that the subsection is limited solely to patients who are either incapacitated and
patients who provide advance health care directives in the event of their future incapacitation.
Significantly, no court in any of the many states that have adopted language virtually identical to
subsection 4734(d) has interpreted that language as covering currently competent adults outside
the context of advance health care directives.

Based on North Coast Women’s Care Medical Group, Inc. v. Superior Court (2008) 44
Cal. 4" 1145, Catholic Charities of Sacramento, Inc. v. Superior Court (2004) 32 Cal. 4 527
and Minton y. Dignity Health (2019) 29 Cal. App. 5" 1155, L also reject Dignity Health’s
arguments that the free exercise clauses of the United States and California Constitutions bar
application of section1258 as to Dignity Health’s Catholic hospitals.

The federal clause does not bar section 1258 because that statute is a neutral law of
general applicability per Employment Division, Department of Human Resources of Oregon v.
Smith (1990) 494 US 872.

The California clause does not bar section 1258 because, per strict scrutiny review and
assuming that section 1258 imposes a substantial burden on Dignity Health’s religious beliefs
and practices, section 1258 “serves a compelling state interest and is narrowly tailored to achieve
that interest.” (Catholic Charities, 32 Cal. 4" at 564).

Lastly, I reject Dignity Health’s argument that petitioners lack standing to assert their
section 1258 claim. Petitioners have an interest in the elimination of Dignity Health’s alleged

consideration of “special nonmedical qualifications” in its determination whether to permit

Page 3postpartum tubal ligations at its Catholic hospitals, Thus Ms. Chamorro has a beneficial interest

and both petitioners have a public interest in pursuing their section 1258 claim.
Further explication of my rulings can be found in the transcripts of the two hearings.
In making the foregoing rulings I have only considered admissible evidence. There is no

need for me to rule on the evidentiary objections filed by the parties since my recollection is that

none of those objections materially impact my resolution of any of the issues raised by the

motion. However, to the extent that my recollection is incorrect and one or more objections do

materially impact my resolution of any of the issues, the objections are overruled.
IT IS SO ORDERED.

Dated: April 30, 2020

L)Em

Hardfd‘Kahn
Superior Court Judge '

Page 4CERTIFICATE OF ELECTRONIC SERVICE
(CCP 1010.6(6) & CRC 2.260(g))

I, Melinka Jones, a Deputy Clerk of the Superior Court of the County of San Francisco,
certify that I am not a party to the within action.

On April 30, 2020, I electronically served the attached ORDER DENYING
RESPONDENT DIGNITY HEALTH’S MOTION FOR SUMMARY JUDGMENT via File &
ServeXpress on the recipients designated on the Transaction Receipt located on the File &

ServeXpress website.

Dated: April 30, 2020

T. Michael Yuen, Clerk

By:

Maks Jones Papi Clerk.