Have US conscience clause protections been eviscerated?
29 November, 2010
Reproduced under Creative Commons Licence
James S. Cole*
An American nurse who was forced to participate in a
late-term abortion has effectively nowhere she can lodge a grievance.
Can 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, if 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
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
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 fundingâ€¦" 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
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.
original article for terms of the licence.