Have US conscience clause protections been eviscerated?

An American nurse who was forced to participate in a late-term abortion has effectively nowhere she can lodge a grievance. 
James S. Cole | Nov 30 2010 | comment  

Catherina Cenzon-DeCarloCan an American nurse refuse to participate in a medical procedure repugnant to her conscience? As of last week, it appears that the answer is no. A Federal Court has ruled that a nurse who was told to assist in a late-term abortion or lose her job cannot file a grievance.

Here is the legal background.

A federal statute known as the "Church Amendment" prohibits an institution that receives federal money under certain programs from discriminating against an individual who either participates or refuses to participate in an abortion. (The statute is named for its sponsor, the late Senator Frank Church, not for any religious organization.) On November 23, 2010, the United States Court of Appeals for the Second Circuit ruled that individuals cannot file suit to vindicate their rights under the Church Amendment. (Cenzon-DeCarlo v. Mt. Sinai Hospital, no. 10-556 (2d. Cir. 11/23/10)).

Catherina Cenzon-DeCarlo worked as a nurse at Mount Sinai Hospital in New York City. She sued the hospital in July2009, alleging that its management forced her to participate in a late-term abortion, despite her written conscientious objection that she had provided on the hospital’s personnel form when she was hired. Furthermore, she claimed that when she filed a personnel grievance after the abortion, Mount Sinai attempted to coerce her into signing a consent to participate in abortions in the future.

The federal appellate court dismissed Ms Cenzon-DeCarlo’s case without a trial. It said that Congress had not provided a "private cause of action" for enforcement of the statute. In other words, Congress had not allowed an individual to file a lawsuit in federal court when his or her rights were violated. So,iIf Ms Cenzon-DeCarlo’s has a legal remedy at all, it lies in the courts of New York State. This is not a surprising result, for in the past 30 years or so, the US Supreme Court has turned remarkably hostile to allowing private parties to file suit in federal courts to protect rights granted under federal statutes, if the statutes do not explicitly allow it.

This attitude shifts responsibility for protection of individual rights onto the Federal government , including the conscience-rights protections under the Church Amendment. This is exactly what the Bush Administration attempted to do when it promulgated regulations in December, 2008 to enforce federal conscience clause rights. The enforcement mechanisms would have begun with the Office for Civil Rights, which was designated in the regulations “to receive complaints of discrimination and coercion based on the healthcare conscience protection statutes . . . [and to] coordinate handling of complaints with the staff of the Departmental programs from which the entity, with respect to whom a complaint has been filed, receives funding…” Annual certifications of compliance by the funded hospitals and other institutions would be required under the Bush regulations. HHS could ultimately withhold federal money from institutions that violated the conscience rights of protected individuals.

Contrary to some rather histrionic claims from pro-abortionists, the 2008 regulations did not enact any new rights or restrictions. They simply provided the means to initiate federal administrative enforcement remedies for the rights which had already been guaranteed in the Church Amendment.

Within 60 days of taking office, the Obama Administration effectively cut off the enforcement of conscience clause rights by announcing an intent to rescind the Bush regulations. The new management of HHS asserted the need to give further consideration to the issues and “to review this regulation to ensure its consistency with current Administration policy.”

True to its habit of making grandiose announcements and then waffling or reversing course, the Administration has not actually carried out its announced intent, much to the chagrin of some pro-abortionists. In fact, the President told Catholic journalists in 2009 that he intended to leave “robust” conscience clause protections in place that would "certainly not be weaker" than the Bush regulations. No official rescission of the Bush regulations has appeared in the Federal Register, although no replacement regulations for the Bush regulations have been issued, either.

However, now there is no need for the Obama Aministration to alter the old regulations. The Bush regulations are just as dead as if they had been officially rescinded, as the Obama Administration obviously intended. They have not been printed in the Code of Federal Regulations for the years 2009 and 2010, where they should have appeared under 45 CFR part 88. We can be certain that if Ms. Cenzon-DeCarlo were to send a complaint to the Office for Civil Rights of HHS under the Bush regulations, it would probably be unacknowledged and would certainly be ignored.

As a result of the federal courts’ jurisprudence and the current Administration’s unwillingness to enforce the Church Amendment, federal conscience clause protections are dead letters.

Nor is success likely for complaints pursued in State Courts. They are not likely to provide remedies based on federal conscience rights, not only because of the general antipathy toward the pro-life side of abortion issues within the legal profession, but also because all American state courts are being overwhelmed by sheer numbers of pending cases in a time of stringent budget cuts. Expanding the possible number of lawsuits is not a favored position in current American jurisprudence.

Until the new Congress enacts specific legislation to allow individuals to vindicate the conscience rights Congress has given them (and overrides a Presidential veto), or until a new Administration is inaugurated that will live up to its duty of enforcing the laws on the books, federal conscience clause protections might as well not exist.

There is an old legal maxim, “Where there is a right, there is a remedy” (“Ubi jus ibi remedium”). The converse applies, too: Where there is no remedy, there is effectively no right.

James S. Cole graduated from Harvard Law School in 1978 and practices law in St. Louis, Missouri.

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