OCR Issues Notice of Violation to the University of Vermont Medical Center After It Unlawfully Forced a Nurse to Assist in Abortion

News Release
For immediate release

US Department of Health and Human Services

Contact: HHS Press Office
202-690-6343
media@hhs.gov

The U.S. Department of Health and Human Services (HHS), Office for Civil Rights (OCR) is announcing that, after a thorough investigation and prolonged attempts to resolve the matter, OCR has issued a Notice of Violation letter finding that the University of Vermont Medical Center (UVMMC) violated the Church Amendments (42 U.S.C. 300a-7) by forcing a nurse to assist in an elective abortion procedure over the nurse’s conscience-based objections. OCR also found that UVMMC has discriminatory policies that assign or require employees to assist abortion procedures even after they have recorded their religious or moral objections to assisting in the performance of such abortions. OCR’s Notice of Violation letter asks UVMMC to conform its policies to the Church Amendments and take other corrective action, or face potential action by the HHS component from which UVMMC has received federal funding.

On May 9, 2018, a nurse at UVMMC filed a conscience and religious discrimination complaint with OCR against UVMMC, a medical center in Burlington, Vermont that receives HHS funds, contending that the nurse was forced to assist an abortion in violation of the nurse’s conscience rights. As part of its investigation, OCR contacted UVMMC repeatedly in a good faith effort to seek cooperation from UVMMC, but the hospital refused to conform its policies to federal conscience laws, provide all the documents requested by OCR, or produce witnesses for OCR interviews. Nevertheless, OCR interviewed multiple witnesses and gathered evidence concerning the allegations.

As a result of its investigation, OCR has specifically determined that:

  • UVMMC forced the nurse complainant to assist in an abortion against the nurse’s religious or moral objection. The nurse had expressed an objection for many years and was included in a list of objectors, but UVMMC knowingly assigned the nurse to an abortion procedure. The nurse was not told the procedure was an abortion until the nurse walked into the room, when the doctor—knowing the nurse objected to assisting in abortions—told the nurse, “Don’t hate me.” The nurse again objected, and other staff were present who could have taken the nurse’s place, but the nurse was required to assist with the abortion anyway. If the nurse had not done so, the nurse reasonably feared UVMMC would fire or report the nurse to licensing authorities.
  • OCR spoke with several other UVMMC health care personnel who, since at least the spring of 2017, have been intentionally, unnecessarily, and knowingly scheduled by UVMMC to assist with elective abortions against their religious or moral objections. Such personnel were often not told in advance that the procedures they were being assigned to assist with were abortions. Health care personnel who are coerced in that way suffer moral injury, are subjected to a crisis of conscience, and frequently experience significant emotional distress, even if they succeed in declining to assist in the procedure after the assignment is made.
  • UVMMC maintains a staffing policy that facially violates the Church Amendments because the policy admits to circumstances where UVMMC can and will force staff—on pain of adverse action or discipline—to participate in abortions against their moral or religious objections. The policy also violates UVMMC’s agreement, as a condition of receiving HHS funds, to comply with federal law, including the Church Amendments and HHS’s grants regulations.
  • Consequently, UVMMC is violating 42 U.S.C. § 300a-7(c)(1) of the Church Amendments by discriminating against health-care personnel who have religious or moral objections to abortion, and subjecting them to different terms or conditions of employment than other health-care personnel.

In the Notice of Violation, OCR asks that UVMMC notify OCR within thirty days whether UVMMC intends to work collaboratively with OCR to change its policies so it no longer requires health care personnel to participate in abortion against their religious or moral objections, and to take immediate steps to remedy the effect of its past discriminatory conduct. Otherwise, OCR indicates that it will forward the Notice to the Health Resources and Services Administration (HRSA), a component of HHS that provides grant funds to UVMMC, for consideration and possible additional procedures concerning UVMMC’s receipt of federal funds.  Since October 1998, UVMMC has received—and continues to receive—grants from HRSA.  For the most recently completed three-year project period, which ended April 30, 2018, UVMMC reported that it cumulatively expended $1.6 million of federal financial assistance.

Roger Severino, Director of OCR said, “Forcing medical staff to assist in the taking of human life inflicts a moral injury on them that is not only unnecessary and wrong, it violates longstanding federal law. Our investigation has uncovered serious discrimination by UVMMC against nurses and staff who cannot, in good conscience, assist in elective abortions.”  Severino concluded, “We stand ready to assist UVMMC in changing its policies and procedures to respect conscience rights and remedy the effects of its discrimination.” 

OCR is charged with helping ensure entities come into compliance with federal laws protecting conscience and prohibiting coercion in health care, including the Church Amendments.

ACLJ Vindicates Rights of Vermont Nurse Who Was Unlawfully Forced to Participate in Abortion – HHS Threatens to Pull Medical Center Funding

American Center for Law and Justice

Reproduced with permission

Jay Sekulow*

The ACLJ applauds today’s announcement by the Office of Civil Rights (OCR) of the U.S. Department of Health and Human Services (HHS) regarding a Complaint we filed on behalf of a Vermont nurse who was forced into participating in an abortion procedure against her deeply held religious beliefs.

In our Complaint, we alleged that our client, an operating room nurse at the University of Vermont Medical Center (UVMMC) in Burlington, was coerced into assisting in an abortion in 2017 even though her name was on a list of nurses who, for religious or moral reasons, were conscientiously opposed to such participation and even though other non-objecting nurses were available who could easily have taken her place.

In the more than two decades of work that ACLJ has done to defend the rights of conscience of pro-life health care workers, this is by far the most outrageous case we’ve ever seen. Our client’s most fundamental beliefs about the sanctity of life were simply brushed aside.

Worse, her superiors deliberately misled her into thinking she was assisting in a procedure following a miscarriage. But once trapped inside the OR she discovered that it was, in fact, an elective abortion and that this had been known all along by her superiors who then callously refused to relieve her. To say that she was emotionally traumatized by this event is putting it mildly.

At least four other nurses at UVMMC have confirmed that they too have been subjected to similar violations of their conscience rights. We forwarded them to OCR as part of our Complaint. And after conducting its own thorough investigation of the matter, OCR has substantiated their allegations.

In its announcement, HHS finds that UVMMC has committed violations of the federal Church Amendment – the so-called “conscience clause” – named for the late liberal Idaho Democratic Senator Frank Church. The law was enacted in 1973 as a response to the Supreme Court’s legalization of abortion in Roe v. Wade. In general, it prohibits entities that receive federal funding from discriminating against employees who refuse to perform or assist in the performance of abortions because of their moral or religious beliefs.

But, because the Church Amendment has always lacked a mechanism for enforcement by private citizens, its enforcement has depended on action taken by HHS itself. In the decades since 1973, however, such enforcement has, for all intents and purposes, been nonexistent. With today’s announcement, HHS’s Office of Civil Rights has, at long last, put teeth in a law that has lain largely dormant since its enactment.

HHS has given UVMMC 30 days to come up with a policy that will ensure that the things that happened to our client, and others like her, will not happen again. If they fail to cooperate, they lose their federal funding.

This action by HHS is an enormous step forward toward the full protection of conscience rights of all those in the health care field who recognize the sanctity of all human life. The repercussions of today’s action will be felt in every hospital and health care system in the country.

No longer should pro-life health care professionals have to fear that their values – the values of protecting, not, destroying, life – make them somehow unfit or unsuitable for the healing profession. No nurses, doctors, or other health workers should ever be deliberately trapped in a room and forced to participate in something that their employer knows those workers consider abhorrent at the core of their being.

For over two decades the American Center for Law and Justice (ACLJ) has been at the forefront of advancing and defending the right of free speech and conscientious objection when it comes to the sanctity of human life. In addition to our work with legislators and public policy makers in Washington and around the country, we have also represented dozens of individuals – women and men on the front lines of the pro-life cause – who have found themselves discriminated against because of their pro-life stands. Doctors, nurses, pharmacists, and other health care workers – we’ve gone to court for them before judges and juries from Maine to Hawaii and most points in between.

The ACLJ very much welcomes HHS’s vigorous enforcement of federal conscience rights in this case. No health care worker should be forced to abandon their career because they refuse to abandon their pro-life convictions. If you are a healthcare worker and have experienced a similar situation, please contact us at ACLJ.org/HELP.

Bolivian doctor to be prosecuted for refusing to perform an abortion

LifeSite News

Jeanne Smits

LA PAZ, Bolivia, March 25, 2019 (LifeSiteNews) — A Bolivian doctor has been suspended by that country’s National Health Fund (Caja Nacional de Salud) for having refused to perform an abortion on a woman pregnant with an anencephalic child. “N.M.,” as he is known, will also be prosecuted before an administrative court, together with the former director of the Jaime Mendoza Workers’ Hospital in Sucre, where the refusal took place.

Abortion is illegal in Bolivia except in cases of rape, incest, danger to the mother’s health, or a lethal malformation of the unborn child.

It was this last case that was invoked by a woman from Cochabamba in February of last year after medical examinations revealed that her baby had a serious congenital malformation. She was five months pregnant. . . [Full text]

Queensland demands practitioners facilitate abortion by referral

Sean Murphy*

The Termination of Pregnancy Act 2018 came into effect in Queensland, Australia, today.

The bill permits abortion up to 22 weeks gestation for any reason; no medical indications are required (Section 5).  Abortion after 22 weeks gestation may be performed for any reason that two practitioners find acceptable (Section6(1)a), including current and future “social circumstances” (6(2)b).

The bill requires disclosure of objections to abortion by a practitioner when asked by someone (not necessarily a patient) to perform or assist in the performance of an abortion on a woman, to make a decision about whether an abortion should be provided for a woman who is over 22 weeks pregnant (Section 6), or to advise about the performance of an abortion on a woman.

When a woman wants an abortion or advice about an abortion for herself, an objecting practitioner is required to refer or transfer the  care of the woman to someone or an agency willing to provide it (Section 3). 

Practitioners who object to abortion in principle and those who object in particular cases are often unwilling to facilitate the procedure by referral, transfers of care or other means because they believe that this makes them parties to or complicit in an immoral act.  Thus, the provision for conscientious objection in the bill actually suppresses the exercise of freedom of conscience by these practitioners.

Thousands step up in support of doctors’ conscience fight

The Catholic Register

Michael Swan

An Ontario campaign to pressure politicians over the protection of health care conscience rights is “democracy in action,” said an organizer.

The Coalition of HealthCARE has so far collected 19,000 names and e-mail addresses in its “Call for Conscience Campaign.” That does not include results from the Archdiocese of Toronto.

The non-partisan campaign was launched to oppose and raise awareness about regulations that force doctors to refer for assisted suicide and euthanasia against their moral convictions.

By the end of March, people who have signed up during the campaign should receive instructions about how to e-mail all the candidates in their ridings in the run-up to Ontario’s June 7 provincial election. . . [Full text]

The courts keep inventing new rights, turning our Charter on its head

National Post
Reproduced with permission

John Carpay

If I told you that I wanted to rob a home or store, would you sell me a gun? Presumably not. But what about giving me the name and contact info of another person who is willing to sell me a gun? If you wanted to avoid any participation in my planned robbery, you would refuse to provide a referral.

When it comes to female genital mutilation (the cutting and removal of some or all of a young girl’s external genitalia) the College of Physicians and Surgeons of Ontario (CPSO) recognizes that referring is as bad as providing. The CPSO prohibits this practice, common in many African and Middle Eastern countries. Female genital mutilation causes infection, disease and death in many girls, and life-long health problems for millions of women.

The CPSO policy prohibits physicians from performing, and from referring for, female genital mutilation procedures. Both performing and referring constitute professional misconduct. The reasoning is obvious. If mutilating a girl is wrong, then it’s also wrong to provide a referral for this barbaric procedure.

College of Physicians and Surgeons of Ontario in Toronto, Ont. on Tuesday April 9, 2013.

Sadly, the CPSO abandoned this common-sense approach in the case of Christian Medical and Dental Society vs. CPSO. This court case was about a challenge to the CPSO policy requiring all doctors in Ontario to provide referrals for abortion, assisted suicide, and other medical procedures which some doctors view as harmful to patients and morally wrong. In court the CPSO argued that “a referral is neither an endorsement of the service for which the referral is provided, nor a guarantee that it will be provided.” The CPSO argued that providing a referral is trivial and insignificant, so a doctor would not be violating her conscience when referring a patient for a procedure that the doctor considers harmful. If the CPSO’s courtroom arguments are true, then why prohibit referring for female genital mutilation?

The Ontario Superior Court of Justice ruled that the CPSO policy violates the Charter freedom of religion and conscience, but then justified this violation as necessary to ensure “equitable” access to health-care services.

Abortion and assisted suicide are both legal medical procedures. Plenty of doctors are available to provide the one, the other, or both. Having to ask two, three or more doctors for a particular medical service is inconvenient for patients, to be sure.

But does the Charter provide citizens with a legal right to be free from inconvenience? Beyond a bald declaration, the court provides no explanation as to how or why being inconvenienced is a violation of the Charter. Nor does the court explain why it is necessary to force every single doctor in Ontario to provide referrals for abortion and assisted suicide. In other words, even if many doctors refuse to provide referrals for these services, the public would still have ready access to both.

The purpose of the Charter is to protect citizens from government. For example, the Charter should protect health-care workers (and everyone else) from being pressured or coerced by a government body to do what one believes to be wrong.

Conversely, there is no Charter right to force another human being to provide a service that runs contrary to their conscience. Interactions between citizens should be free from coercion. A patient’s power to compel a doctor to do what the doctor believes to be harmful is as destructive as a doctor’s power to compel a patient to do what the patient believes to be harmful.

The doctors who challenged the CPSO policy were not merely asking the court to be spared an inconvenience. Rather, an Ontario doctor who refuses to violate her conscience risks expulsion from the medical profession.

In upholding the CPSO policy, the court confuses fundamental Charter freedoms with personal interests and desires. The court has dismissed the Charter’s protection from government coercion as less important than a newly invented “right” to compel our fellow citizens (in this case doctors) to do what we want them to do. The court has turned the Charter on its head.

Lawyer John Carpay is president of the Justice Centre for Constitutional Freedoms (Jccf.ca), which intervened in Christian Medical and Dental Society of Canada vs. College of Physicians and Surgeons of Ontario.

 

Obliged to Kill

The Assault on Medical Conscience

The Weekly Standard
Reproduced with permission

Wesley J. Smith*

A court in Ontario, Canada, has ruled that a patient’s desire to be euthanized trumps a doctor’s conscientious objection. Doctors there now face the cruel choice between complicity in what they consider a grievous wrong – killing a sick or disabled patient – and the very real prospect of legal or professional sanction.

A little background: In 2015, the Supreme Court of Canada conjured a right to lethal-injection euthanasia for anyone with a medically diagnosable condition that causes irremediable suffering – as defined by the patient. No matter if palliative interventions could significantly reduce painful symptoms, if the patient would rather die, it’s the patient’s right to be killed. Parliament then kowtowed to the court and legalized euthanasia across Canada. Since each province administers the country’s socialized single-payer health-care system within its bounds, each provincial parliament also passed laws to accommodate euthanasia’s legalization.

Not surprisingly, that raised the thorny question of what is often called “medical conscience,” most acutely for Christian doctors as well as those who take seriously the Hippocratic oath, which prohibits doctors from participating in a patient’s suicide. These conscientious objectors demanded the right not to kill patients or to be obliged to “refer” patients to a doctor who will. Most provinces accommodated dissenting doctors by creating lists of practitioners willing to participate in what is euphemistically termed MAID (medical assistance in dying).

But Ontario refused that accommodation. Instead, its euthanasia law requires physicians asked by a legally qualified patient either to do the deed personally or make an “effective referral” to a “non-objecting available and accessible physician, nurse practitioner, or agency .  .  . in a timely manner.”

A group of physicians sued to be exempted from the requirement, arguing rightly that the euthanize-or-refer requirement is a violation of their Charter-protected right (akin to a constitutional right) to “freedom of conscience and religion.”

Unfortunately, the reviewing court acknowledged that while forced referral does indeed “infringe the rights of religious freedom .  .  . guaranteed under the Charter,” this enumerated right must nonetheless take a back seat to the court-invented right of “equitable access to such medical services as are legally available in Ontario,” which the court deemed a “natural corollary of the right of each individual to life, liberty, and the security of the person.” Penumbras, meet emanations.

And if physicians don’t want to commit what they consider a cardinal sin, being complicit in a homicide? The court bluntly ruled: “It would appear that, for these [objecting] physicians, the principal, if not the only, means of addressing their concerns would be a change in the nature of their practice if they intend to continue practicing medicine in Ontario.” In other words, a Catholic oncologist with years of advanced training and experience should stop treating cancer patients and become a podiatrist. (An appeal is expected.)

This isn’t just about Canada. Powerful political and professional forces are pushing to impose the same policy here. The ACLU has repeatedly sued Catholic hospitals for refusing to violate the church’s moral teaching around issues such as abortion and sterilization. Prominent bioethicists have argued in the world’s most prestigious medical and bioethical professional journals that doctors have no right to refuse to provide lawful but morally contentious medical procedures unless they procure another doctor willing to do as requested. Indeed, the eminent doctor and ethicist Ezekiel Emanuel argued in a coauthored piece published by the New England Journal of Medicine that every physician is ethically required to participate in a patient’s legal medical request if the service is not controversial among the professional establishment—explicitly including abortion. If doctors don’t like it? Ezekiel was as blunt as the Canadian court:

Health care professionals who are unwilling to accept these limits have two choices: select an area of medicine, such as radiology, that will not put them in situations that conflict with their personal morality or, if there is no such area, leave the profession.

For now, federal law generally supports medical conscience by prohibiting medical employers from discriminating against professionals who refuse to participate in abortion and other controversial medical services. But the law requires administrative enforcement in disputes rather than permitting an individual cause of action in civil court. That has been a problem in recent years. The Obama administration, clearly hostile to the free exercise of religion in the context of health care, was not viewed by pro-life and orthodox Christian doctors as a reliable or enthusiastic upholder of medical conscience.

The Trump administration has been changing course to actively support medical conscience. The Department of Health and Human Services recently announced the formation of a new Conscience and Religious Freedom Division in the HHS Office for Civil Rights, which would shift emphasis toward rigorous defense of medical conscience rights.

Critics have objected belligerently. The New York Times editorialized that the new emphasis could lead to “grim consequences” for patients—including, ludicrously, the denial by religious doctors of “breast exams or pap smears.”

The American College of Obstetricians and Gynecologists joined the Physicians for Reproductive Health to decry the creation of the new office – which, remember, is merely dedicated to improving the enforcement of existing law – warning darkly that the proposal “could embolden some providers and institutions to discriminate against patients based on the patient’s health care decisions.”

The Massachusetts Medical Society joined the fearmongering chorus, opining that the new office could allow doctors to shirk their “responsibility to heal the sick.” Not to be outdone in the paranoia department, People for the American Way worried the new office might mean that “other staff like translators also refuse to serve patients, which could heighten disparities in health care for non-English-speaking patients.”

The Ontario court ruling is a harbinger of our public policy future. Judging by the apocalyptic reaction against the formation of the Conscience and Religious Freedom Division, powerful domestic social and political forces want to do here what the Ontario court ruling – if it sticks on appeal – could do in that province: drive pro-life, orthodox Christian, and other conscience-driven doctors, nurses, and medical professionals from their current positions in our health-care system.


Wesley J. Smith is a senior fellow at the Discovery Institute’s Center on Human Exceptionalism and a consultant to the Patients Rights Council.

Physicians seek leave to appeal Ontario court ruling against physician freedom of conscience

Introduction

Physicians and physician associations are seeking leave to appeal a decision of the Ontario Divisional Court to the effect that physicians must collaborate in providing procedures and services to which they object for reasons of conscience, even if that means collaborating in euthanasia and assisted suicide.  The appeal will be costly.  Faye Sonier, Chief Executive Office of one of the associations that brought the challenge, has issued a plea for donations to support the appeal by Canadian Physicians for Life, the Christian Medical and Dental Society, and the Canadian Federation of Catholic Physicians’ Societies.

Plea for donations to support the appeal of the Ontario Divisional Court decision

The time has come to further our fight to defend the conscience rights of doctors in Ontario. I’m asking you to support our efforts in this fight by making a donation today

As you know, the College of Physicians and Surgeons of Ontario (CPSO) decision was released on January 31. The court found the religious freedom rights of Ontario doctors are significantly violated by the CPSO’s policies, but that those violations can be justified to ensure patient access to healthcare. 

After lengthy consultation with the parties involved in our legal coalition and with over a dozen constitutional lawyers, we’ve decided to request permission from the Ontario Court of Appeal to appeal the decision.

We are pursuing an appeal as the decision was troubling and problematic on many fronts. We have numerous grounds of appeal from which to choose and we will narrow our focus in the coming days.

This is an important step in a process:

  • to ensure that policies that serve only to restrict the constitutional freedoms of physicians do not go unchallenged;
  • to dissuade other provinces from acting similarly;
  • and to communicate that patient access to healthcare is not hindered by maintaining the respect for conscientious objectors in the medical field.

The three physician groups involved in this legal fight, Canadian Physicians for Life, the Christian Medical and Dental Society, and the Canadian Federation of Catholic Physicians’ Societies, are joining together to raise the $125,000 needed for this next step of litigation.

We’re coming to you to ask for your financial support.

Much of the legal costs will be accrued up front as we must conduct research and prepare our written arguments to file the legal documents requesting the opportunity to appeal.  One-time donations made here will directly support this legal fight.

Physicians for Life is a registered charity and issues tax receipts.

Sincerely,

Faye Sonier
Executive Director & General Legal Counsel

P.S. Thank you so much for enabling CPL to continue this battle to defend conscience rights by making your donation today. This case is urgent, and we need funds as soon as possible to ensure that our legal counsel can be in the best position possible to further this fight.

New HHS office that enforces health workers’ religious rights received 300 complaints in a month

The Hill

Jessie Hellman

More than 300 individuals filed a complaint with the Health and Human Services (HHS) Department over the last month, saying that their religious or conscience rights have been violated by their employer, a state or state agency or a health provider.

The complaints follow the creation of a new division within HHS that focuses on enforcing those rights and investigating complaints from individuals who say their rights have been violated.

For example, a nurse could file a complaint against their employer if they are coerced into participating in an abortion or disciplined for refusing to do so . . . [Full Text]

Court Holds Health Care Conscience Act Trumps County’s Immunity Claim

News Release

For immediate release

Mauck & Baker LLC

ROCKFORD, Ill.—On Monday, Chief Judge Eugene Doherty rejected Winnebago County’s primary defense that the Tort Immunity Act shielded it from liability for claims that Rockford nurse Sandra (Mendoza) Rojas brought against it after she was forced out of her job for refusing to participate in abortion-related services. Rojas’ right to refuse to participate in such services is protected under the Illinois Health Care Right of Conscience Act and Illinois Religious Freedom Restoration Act. A devout Catholic, Rojas worked for the Health Department for 18 years providing pediatric care, immunizations, and screenings.

In 2015, the county’s new Public Health Administrator, Dr. Sandra Martell, merged the pediatric clinic with women’s health services and mandated that all nurses be trained to provide abortion referrals and participate in the provision of abortifacients like Plan B. When Rojas, who Dr. Martell considered to be a “good nurse,” informed the administration of her conscientious objections to participating in any way in the provision of abortions, Dr. Martell gave Rojas two weeks to either quit or accept a demotion to a temporary job as a food inspector. Rojas refused the demotion and lost her job at the clinic.

The suit seeks damages under the Illinois Health Care Right of Conscience Act which prohibits public officials from discriminating against a person in any manner because of their conscientious refusal to participate in any way in the provision of abortions. The Act provides for treble damages and the recovery of attorneys’ fees and costs. “Nursing is more than just a job, it is a noble calling to protect life and do no harm. There is something terribly wrong when you are forced out of your job on account of your commitment to protect life,” said nurse Rojas.

Rojas’ attorney, Noel Sterett, from the law firm Mauck & Baker in Chicago, said, “The Conscience Act was written to ensure that both public and private health care professionals would be protected from government efforts to force them out on account of their conscientious objections.” Denise Harle, Alliance Defending Freedom legal counsel said, “Pro-life nurses shouldn’t be forced to perform or assist in abortion procedures. An individual’s conscience and commitment to the Hippocratic Oath to ‘do no harm’ is often what draws health care workers into the medical field.”

View Complaint

View Order

Contact:
Mauck & Baker Attorney
Noel W. Sterett, Esq.
312-726-6454