Your Conscience,Your Right: A History of Efforts to Violate Pro-Life Medical Conscience,and the Laws that Stand in the Way *

An operating room nurse arrives at her weekend call shift. It is morning at Mount Sinai Hospital in New York City, and Cathy DeCarlo comes to her assignment desk just as she has countless times in her five years at the hospital. But this morning is different. Cathy is assigned to circulate in a room where a twenty-two-week “D&E” dismemberment abortion will be performed on a live baby. Cathy promptly calls for clarification, noting that the hospital has known her religious objection in writing based on her Catholic faith since the day she was hired. The pregnant mother is diagnosed with preeclampsia, but the hospital did not designate the case as requiring immediate surgery, and the patient is not on magnesium therapy. The patient later presents in the operating room in a stable condition with blood pressure that is not near crisis level.

Cathy's supervisor, who is willing to participate in such procedures, is available to assist. And Mount Sinai, one of the top ranked medical centers in the United States, receives hundreds of millions of federal health dollars every year, which require the hospital not to discriminate against employees who choose not to assist abortions if it would violate their religious beliefs. Yet despite Cathy's tearful pleas, her supervisors tell her she must immediately assist in the late-term abortion or she will be charged with insubordination and patient abandonment, threatening her job and her nursing license. ²

Abortion advocates in the medical industry, and their legal and political allies, are not content with merely legalizing and legitimizing the willful destruction of an unborn child. They are increasingly seeking to require pro-life medical professionals to participate in abortions themselves or leave the medical profession to those who will. Anyone with an awareness of the Left's playbook will be unsurprised by its anti-choice (for medical professionals) agenda. No matter the issue, liberal legal activism follows the following pattern:

Seven Stages of Liberal Legal Activism

Yet, it is often difficult to see the bottom of the slope from the top. From the origins of the “right” to an abortion, the Supreme Court anticipated that medical professionals would only be willing participants—not a hired forceps that a woman could command to destroy the life within her. The actual holdings of Roe v. Wade, far from authorizing a woman to co-opt a physician into aborting her baby, focuses on the physician's freedom of self-determination: “[T]he attending physician, in consultation with his patient, is free to determine, without regulation by the State, that in his medical judgment, the patient's pregnancy should be terminated.” ³ Indeed, in Roe the Court cited favorably a resolution of the American Medical Association House of Delegates that stated:

Similarly, in Doe v. Bolton, the companion case to Roe, although the Court invalidated a Georgia abortion law, the Court fused the woman's decision with “her licensed physician's best judgment and the physician's right to administer it.” ⁵ Moreover, the decision left in place a statutory provision that permitted hospitals not to admit patients for abortions and prohibited hospitals from requiring medical professionals to perform or assist in abortions, calling this provision an “appropriate protection to the individual and to the denominational hospital.” ⁶ Thus neither Roe nor Doe provide any support for—and even implicitly rejected—the idea that a woman has the right to require a medical professional to perform an abortion against his conscience or professional judgment.

Nevertheless, even as Justice Blackmun made his final edits on Roe, abortion advocates were already converting the argument for a “choice” made between a woman and her doctor into an obligation on medical professionals and private religious hospitals to perform abortions or sterilizations. In a series of cases brought in the early 1970s, abortion advocates sought to force denominational (mainly Catholic) hospitals to perform abortions and sterilizations. They cited the hospitals' tax exemptions, state licenses, and receipt of Medicare and participation in other government programs as a basis for treating them as agents of the state denying women their newly found “reproductive rights.” Rather than taking a slow slide down the slippery slope, abortion advocates tried the express elevator.

At first they found success. In October 1972 a federal district court in Montana ordered a Catholic hospital to perform a tubal ligation on a woman, finding that it was a “state actor” by virtue of its licensing and participation in some federal programs and was therefore prohibited from denying her this treatment. ⁷ Other Catholic hospitals in Idaho, Oregon, and elsewhere also came under attack for their adherence to Church teachings and refusal to disavow their rights of conscience. ⁸ The Roe decision, announced in January 1973, might have provided additional ammunition for this attack on health-care professionals' rights of conscience by recognizing abortion as constitutionally protected. But Congress, concerned about this growing threat to conscience rights, enacted the Church Amendment just a few months after Roe.

The Church Amendment prohibits courts or government agencies from requiring hospitals to perform abortions or sterilizations merely because of their receipt of Health and Human Services funds. It also prohibits any biomedical or behavioral research grantee of the Department of Health and Human Services, including state and local governments and most hospitals, from requiring individuals “to perform or assist in the performance of any part of a health service program or research activity funded in whole or in part under a program administered by the Secretary of Health and Human Services” if doing so “would be contrary to his religious beliefs or moral convictions.” The Church Amendment further prohibits a broad array of Health and Human Services grantees from “deny[ing] admission or otherwise discriminat[ing] against an applicant” because of their refusal to assist or participate in any way in abortions or sterilizations contrary to their religious beliefs or moral convictions. ⁹

Despite the Church Amendment, abortion advocates continued to push for mandatory abortion training in medical schools, and students were often pressured to undergo abortion training or discriminated against because of their refusal to do so. In 1996 a bipartisan Congress again defended conscience rights with the Coats-Snowe Amendment to the Public Health Services Act. This law prohibits the federal government and any state or local government receiving federal funds (i.e., all of them) from discriminating against physicians or health-training programs or their participants on the basis that they do not provide or undergo abortion training or perform or refer for abortions. ¹⁰

By 2004 abortion advocates were once again taking aim at Catholic and other hospitals that refused to perform or refer for abortions. Prevented from attacking them directly due to the Church Amendment, they sought to force any hospital merging with or acquiring another medical clinic or hospital to open their doors to abortions. Through state regulators and pressure from abortion-friendly attorneys general, abortion proponents began to have some success in mandating abortion openness as a condition of these mergers. ¹¹

Once more, three decades after the Church Amendment was enacted, a bipartisan Congress intervened to again defend the rights of faith-based health-care providers, whether institutional or individual, not to perform or assist in abortions. The Weldon Amendment is an appropriations rider that forbids any funds flowing through the Departments of Health, Labor, or Education ¹² from being provided to any federal agency or program or state or local government that discriminates against providers because of their refusal to “provide, pay for, provide coverage of, or refer for abortions.” ¹³

Before the ink was dry on the Weldon Amendment, the National Family Planning & Reproductive Health Association, a coalition of abortion practitioners and clinics across the country, filed a lawsuit challenging the law. The State of California followed with its own lawsuit with support from the California Medical Association and Planned Parenthood. The Alliance Defense Fund and an organization allied with it, the Christian Legal Society's Center for Law & Religious Freedom, intervened in both lawsuits, defending the law on behalf of the Christian Medical Association, American Association of Pro-Life Obstetricians and Gynecologists, and the Fellowship of Christian Physician Assistants. After nearly two years of court proceedings, judges ultimately rejected both challenges to the Weldon Amendment, and it has been renewed in each successive budget bill. ¹⁴

Many state legislatures also enacted their own conscience protections over the past four decades, though the states' record on enforcing them is mixed. All but a handful of states passed their own conscience protections similar to the Church Amendment in order to protect prolife health professionals from being required to assist in abortions. The content of those laws varies on what medical procedures are covered and how they can be enforced. At the same time, and sometimes in the same states, abortion proponents recently have succeeded in passing laws that require participation in activities regardless of a health professional's religious objection. These laws tend to focus on birth control pills and abortifacient drugs, though (as illustrated in the lawsuit by California) several states believe they can compel assistance in abortion as well. And with increased availability of first trimester abortion drug regimens, the forced administration and dispensing of any and all “lawful prescriptions” (as in New Jersey ¹⁵ ) will soon compel assistance in abortion too, if it does not already.

Together, the Church Amendment, Coats-Snowe Amendment, and Weldon Amendment provide a clear expression of bipartisan Congressional will that health-care workers should not be pressured by anyone receiving federal dollars to in any way participate in or refer for abortions or other procedures in violation of their conscience. Nearly four decades of legislators have struck this balance on abortion: “choice” is a two-way street. While the Supreme Court has recognized a right to choose to have an abortion in some circumstances, no medical professional should be forced to participate.

But these laws have one possible deficiency. They provide no explicit means by which a medical professional or institution may seek redress for a violation of their conscience. As counterintuitive as it may seem, not all laws prohibiting an activity also allow a litigant to seek redress in a court. Courts may (and should) decide that laws like the Church Amendment have an implied remedy even if the remedy is not explicitly spelled out. But courts might decide that no right to sue is implied. Despite the similarities of these laws, they are diverse among themselves in how they are written. Some (like the Church Amendment) are plain commands against discrimination and were enacted at a time when courts readily recognized the right to sue. Others (like the Weldon Amendment) are less direct requirements aimed at the federal government to impose eligibility requirements for funding, rather than directives to the fund-recipient medical entities that they must not discriminate.

Nor is it clear to what extent federal agencies have actually complied with these laws by investigating violations or even requiring fund recipients to expressly certify that they will follow them. Most of these laws have rarely if ever been tested in court to protect particular people from discrimination, so it is not clear how courts will rule on whether a right to sue exists. As a consequence, despite three decades of strong conscience protections, there has apparently been little enforcement of these laws and some health-care providers and recipients of federal funds may be unaware of their existence.

Yet there are other legal avenues that might enable health professionals to protect their rights. Some state conscience laws fail to explicitly create a right to sue, but others do allow lawsuits, such as in Illinois, where pharmacists recently won an injunction against a requirement that they dispense certain abortifacients. ¹⁶ In addition, federal and state laws protecting against employment discrimination may protect pro-life health professionals. Title VII of the Civil Rights Act prohibits religious and other discrimination in employment, and most states have parallel laws. Title VII deems an employer's refusal to reasonably accommodate an employee's religious beliefs to be religious discrimination. Most importantly, unlike the Church, Coats-Snowe, and Weldon Amendments, individuals can file claims with the Equal Employment Opportunity Commission and assert their Title VII rights in court.

Unfortunately Title VII has been interpreted by courts to only require employers to accommodate an employee's religious beliefs and practices where doing so would not impose an “undue hardship” on the employer. Courts have deemed most costs and difficulties for an employer to satisfy this low standard, making it very difficult for employees seeking religious accommodations to prevail on Title VII claims. Nevertheless, some state employment discrimination laws (such as in New York) are more protective than Title VII and less deferential to employers.

Of course, the very first right mentioned in the First Amendment is religious freedom and with respect to government actions and government employers this also protects your right to refuse to participate in abortions in violation of your conscience. Recall that when the Supreme Court decided Doe v. Bolton, the companion case to Roe v. Wade, it left standing a rule stating that “a physician or any other employee has the right to refrain, for moral or religious reasons, from participating in the abortion procedure.” The Court explained that this was “obviously in the statute in order to afford appropriate protection to the individual and to the denominational hospital.” ¹⁷

Later decisions from the Ninth Circuit Court of Appeals, not typically known for its friendliness to either religious freedom or the sanctity of life, interpreted Doe as recognizing a First Amendment right not to assist in abortions and other procedures against one's conscience and rejected the argument that protecting rights of conscience infringed the newly minted abortion right. In Chrisman v. Sisters of St. Joseph of Peace, the Ninth Circuit, citing Doe, recognized that the First Amendment protects “the freedom of religion of those with religious or moral scruples against … abortions” and that the Supreme Court in Doe had recognized “the need of denominational hospitals for such protection.” ¹⁸ The Court was even more explicit in Taylor v. St. Vincent's Hospital: “If the hospital's refusal to perform [an abortion] infringes upon any constitutionally cognizable right to privacy, such infringement is outweighed by the need to protect the freedom of religion of denominational hospitals.” ¹⁹

Similarly, in Doe v. Bellin, the Seventh Circuit held that “there is no constitutional objection to the decision by a purely private hospital that it will not permit its facilities to be used for the performance of abortions,” explaining that the Supreme Court had necessarily rejected the argument that conscience protections were unconstitutional in Doe v. Bolton. ²⁰ Thus by the mid-1970s the trajectory of the courts was toward not only recognizing the Church Amendment as a permissible defense of conscience rights but one mandated by the free exercise clause of the First Amendment. As the Church Amendment's validity was consistently upheld, the attempts to force faith-based hospitals to perform abortions or sterilizations waned for the ensuing decade.

Unfortunately, the Supreme Court's 1990 decision in Employment Division v. Smith made it much more difficult to rely upon the Free Exercise Clause to protect conscience rights. In Smith the Court held that Congress could apply a law prohibiting the transportation of certain psychotropic drugs even against Native American tribes that used the drugs in religious rituals. In reaching its decision the Court reinterpreted its previous Free Exercise decisions and held that “neutral and generally applicable” laws would not normally violate the First Amendment even if they impaired religious exercise in a given application. Hence, after Smith a health-care provider would find it more difficult to succeed on a claim that a law or public hospital policy requiring all medical staff to perform abortions violates their Free Exercise rights. Although there remain strong free exercise arguments in the conscience context after Smith, there is no doubt that the decision is a setback for rights of conscience. ²¹

Once again, however, some state laws may come to the rescue, but that area of law needs more extensive development. Several states have either statutes or court decisions that protect conscience rights from infringement by state agencies or government employers under the stricter standard that the federal courts used prior to Smith. But many of these doctrines have not recently been tested, and some on the margins have failed to be as protective as hoped, such as when Catholic Charities in New York was forced to provide insurance coverage for contraceptives, ²² and two Christian California doctors were required to provide fertility treatment to a lesbian couple. ²³

The foregoing illustrates the importance of the Bush Administration's conscience regulations. Court decisions have limited the effectiveness of constitutional and Title VII protections, and the federal conscience laws do not explicitly grant a right for an individual to enforce them in court. The regulations issued near the end of President Bush's second term, 45 CFR Part 88, imposed for the first time an obligation on Health and Human Services grantees to specifically certify that they had read and would comply with the Church, Coats-Snowe, and Weldon Amendments. Even this small amount of compulsory compliance would be helpful in ensuring greater education about and adherence to the laws and respect for conscience rights.

The regulations would also have provided a mechanism for reporting instances of violations of the conscience laws to Health and Human Services and for investigation of those reports by Health and Human Services. The regulations express no opinion on whether victims of discrimination may sue. But, for the first time, an administrative process for enforcement of these laws would have existed. Thus, while it is true that the regulations impose no new substantive obligations on grantees and in their absence the existing laws would remain, the regulations provide valuable procedures to implement and enforce the existing laws.

Unfortunately, the Obama Administration has proposed rescinding the Bush Administration regulations. ²⁴ The move came on the heels of lawsuits filed by eight pro-abortion state attorneys general, Planned Parenthood, and the National Family Planning & Reproductive Health Association challenging the regulations. The lawsuit is presently on hold pending the Obama Administration's final action rescinding the regulations. However, the Alliance Defense Fund, again along with the Christian Legal Society, represents the Catholic Medical Association and other pro-life medical organizations seeking to intervene in the case to defend these regulations. ²⁵ Tellingly, despite requests by Mr. Bowman as counsel for DeCarlo, the Obama Administration has failed even to acknowledge its authority to enforce the existing federal conscience laws, such as the Church Amendments in that case, demonstrating the need for regulations implementing and providing enforcement mechanisms for existing conscience-protection laws and raising serious doubts about the Obama Administration's defense of the regulations in Court.

Whatever the outcome of that litigation and the Obama Administration's decision on rescinding the regulations, there is little doubt that pro-life medical professionals and institutions are in the cross-hairs of pro-abortion advocates unable to tolerate the dissenting voice of those who refuse to participate in abortions. At a 2007 Women Deliver conference in London, the Catholic Church along with individual physicians and pharmacists that object to participating in abortions or dispensing abortifacients were identified as “opponents” to reproductive freedom. There is little doubt that abortion advocates are determined to overcome these “opponents.” ²⁶

Catholic Medical Association members and other pro-life medical professionals must stand and defend their conscience rights in this time or risk the loss of those rights in the near future. We are now entering an era where violations of conscience are rapidly multiplying, even as federal and state laws protecting conscience have lain dormant for many years and are being threatened or curtailed. Those laws may still protect pro-life medical providers, but only if providers are aware of their rights and choose to call a pro-life legal organization for help. They need to be willing to tell their stories confidentially to attorneys who can discern and advise them on whether they and others can be protected by federal or state laws that could apply in their circumstances. If they have a good case, they need to be willing to tell their story and stand up for their rights in a court of law.

Cathy DeCarlo took this stand. She has suffered immensely from being forced to watch the arms and legs being torn off an innocent twenty-two-week-old child, in blatant violation of federal law, which protects her right to choose not to participate. Alliance Defense Fund is representing Cathy for free, and has filed a federal lawsuit on her behalf. Among several courses of relief, Alliance Defense Fund will seek to confirm a victim's right to sue to enforce the Church Amendment. Alliance Defense Fund and its allies are ready to assist medical students, professionals, and institutions who are willing to stand in this gap and refuse to sacrifice their consciences to the anti-choice agenda being promoted by those who call themselves “pro-choice.” ²⁷