Empowering private protection of conscience.

AuthorWilson, Robin Fretwell

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 ... raised." (23) Then in June of 2010, Health and Human Services concluded that "OCR also has been designated to receive complaints of discrimination and coercion that violate the Church Amendment, ... and its implementing regulation," the Bush Regulation. (24) As a result, Health and Human Services opened an investigation into DeCarlo's complaint. (25)

The unclear future of the Bush Regulation, together with DeCarlo's experience, frame nicely the questions this Essay explores: Exactly what conscience protections do individual health-care providers receive under federal law and what recourse, if any, will they have if employers or others do not respect those protections? If private remedies are unavailable, what recourse will individuals have if the Obama Administration rescinds the Bush Regulation in its entirety, including the complaint procedure? If federal enforcement officials lack a mechanism to police conscience violations, (26) or worse, believe the law is wrong-headed and simply choose not to enforce it, (27) will individual objectors have any recourse?

This Essay first traces the history and development of federal conscience protections for health-care providers. It then examines whether the Church Amendment in particular creates a private right of action, and concludes that it does not. This Essay then explores the difficulty objectors would face if the Executive Branch chooses not to enforce federal conscience protections. Finding little recourse for conscientious objectors given the broad discretion accorded to agencies charged with enforcing the law, this Essay concludes that a private right of action may be necessary to provide meaningful conscience protections to individual providers.

  1. THE FEDERAL CONSCIENCE PROTECTIONS

    Conscience clauses in health care date back to just after the United States Supreme Court's 1973 decision in Roe v. Wade. (28) On their face, these statutes carve out a space for medical providers to continue in their professional roles without participating in certain acts they find immoral.

    Before the advent of the first federal conscience clause, however, the result was strikingly different. Although the Supreme Court's decisions in Roe (29) and Griswold v. Connecticut (30) established only the right to noninterference by the state in a woman's contraception and abortion decisions, (31) Roe precipitated a significant demand for abortion. Almost immediately the question arose: Do health-care providers have a duty to provide a patient with the abortion she now seeks and to which she has a constitutional right, or can providers simply say, "No thank you, not me"? In other words, do health-care providers have the right to refrain from this particular service?

    In 1973, when Roe was decided, the question of a duty to provide an abortion was a significant one because the overwhelming majority of health-care institutions were nonprofit, tax-exempt facilities often affiliated with a church. (32) One of the reasons the question arose was because a woman's right to abortion was established through civil rights litigation, and not legislation. Civil rights litigation is designed to sort out what the rights are between the plaintiff--who is suing for access to something, like abortion--and the state that wants to regulate or deny it. But civil rights litigation is terrible at sorting out how everyone else other than the plaintiff and the state are going to have to respond to the new right the plaintiff is receiving. Thus, Roe opened a real can of worms both for institutional providers like the Catholic hospitals that did not want to offer abortions, and for individual providers who objected to performing them as well.

    Family planning advocates worked diligently to extend the noninterference rights recognized in Roe into affirmative entitlements to another's assistance. This involved attempts to force individual institutions to provide controversial services and to force individual health-care providers to participate in them. (33) The private lawsuits brought against facilities urged that because of the facility's receipt of certain federal monies and because of their tax-exempt status, a hospital that refused to perform an abortion deprived patients of their constitutional rights under color of state law." (34) In other words, the plaintiffs urged that the hospital represented a state actor simply because they received federal funds or a free pass on their taxes.

    The first of the suits to use this argument pressed for access to sterilization services shortly before Roe v. Wade. In Taylor v. St. Vincent's Hospital, (35) the United States District Court for the District of Montana enjoined a private, nonprofit, charitable hospital in Billings, Montana, from refusing to perform a tubal ligation. (36) The hospital had prohibited Mrs. Taylor's physician from surgically sterilizing her during the delivery of her baby by Caesarian sections Mrs. Taylor brought suit under 42 U.S,C. [section] 1983, which prohibits entities acting under color of state law from subjecting "any citizen ... to the deprivation of any rights, ... secured by the Constitution and laws." (38) In denying the hospital's motion to dismiss for lack of jurisdiction, "the court [found that receipt of certain federal construction funds known as] Hill-Burton ... funds is alone sufficient to support an assumption of jurisdiction." (39) The hospital's tax immunity and licensing by the state also established, in the court's view, a connection between the hospital and the state sufficient to support jurisdiction. (40)

    Almost before the ink could dry on the injunction, Congress stepped in with the first of the federal health-care conscience clauses, the Church Amendment. (41) That legislation prohibits a court or federal agency from using receipt of certain federal monies as a basis for making an individual or institution perform an abortion or sterilization contrary to their "religious beliefs or moral convictions" and forbids...

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