Empowering Private Protection of Conscience

By Wilson, Robin Fretwell | Ave Maria Law Review, Fall 2010 | Go to article overview

Empowering Private Protection of Conscience


Wilson, Robin Fretwell, Ave Maria Law Review


Questions of conscience have bubbled to the surface over the last year, exposing what may be a gaping hole in the shield that federal law is supposed to have erected around individual prerogatives to refrain from providing deeply divisive health-care procedures. (1) Dating back to 1973, the year of Roe v. Wade (2) these federal conscience protections allow health-care personnel to refuse to provide or assist with abortion, sterilization, and other procedures if doing so would violate their "religious beliefs or moral convictions." (3)

On March 10, 2009, the Obama Administration asked for advice on whether to retain the so-called Bush Conscience Regulation ("Bush Regulation"), (4) finalized in the closing hours of the Bush Administration. (5) The Obama Administration "propos[ed] to rescind in its entirety the final rule." (6) Among other things, the Bush Regulation directed health-care entities to certify that they are complying with federal conscience protections, and created a procedure for individuals to file complaints with U.S. Department of Health and Human Services if their conscientious objections are not honored. (7) Until the Bush Regulation, the government provided no way for persons to file a complaint about possible violations. (8)

A hue and cry went up from various quarters that, in soliciting advice, President Obama had in fact "roll[ed] back" conscience protections. (9) The President's own remarks about the Bush Regulation fueled such concerns. On the eve of a visit with the Pope, President Obama said he supports sensible and "robust" conscience protections and that his policy "certainly will not be weaker" than what existed prior to the Bush Regulation. (10) President Obama's statements seem to suggest that federal conscience protections are not largely fixed in statute but instead are subject to significant change through regulatory action. (11)

Against this backdrop of fears over waning protections, events on May 24, 2009 led Cathy Cenzon-DeCarlo, an operating room nurse, to sue Mt. Sinai Hospital in New York. (12) She claimed she was threatened and coerced into assisting with an abortion in violation of the Church Amendment, (13) which prohibits certain federally-funded organizations from discriminating against health-care professionals who refuse for religious or moral reasons to participate in abortions. (14)

Cathy's case, if it happened the way she alleges, is quite disturbing. (15) She says she alerted Mt. Sinai to her religious objection when she was hired, and that Mt. Sinai staffed around the objection for years. (16) That changed on Sunday, May 24, 2009. (17) Cathy's superior, she says, threatened her not only with the possibility of losing her job if she did not help with the abortion, but also with reporting her to the nursing board for "patient abandonment." (18) Cathy's family relied financially on her eight to nine on-call shifts a month, a number that shrank to once a month after this collision over facilitating abortion. (19)

Now, if all this unfolded for the reasons alleged, Cathy's case could not be a more clear-cut instance of discrimination against an abortion objector--something federal law has purported to prohibit since the enactment of the Church Amendment in 1973. (20) Mt. Sinai's response on August 10, 2009, asked simply that Cathy's case be dismissed. Mt. Sinai asserted that the Church Amendment did not confer a private right of action. (21) In its order dismissing the suit, the U.S. District Court for the Eastern District of New York agreed. (22)

Having no private recourse, attorneys for Cathy asked Health and Human Services to investigate her experience at Mt. Sinai. Health and Human Services initially indicated that it would need "to decide whether [the office charged with enforcing medical nondiscrimination laws, the Office of Civil Rights within Health and Human Services] has authority and is able to take action with respect to the matters . …

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