United States

U.S. conscience protection laws adrift

In the United States, there are federal laws that protect the conscience of healthcare professionals, but what happens when a healthcare professional feels that his or her conscience rights have been violated?

Gonzalo Meza-August 18, 2021-Reading time: 4 minutes

Photo credit: Maria Oswalt / Unsplash

In 2017, a nurse at the University of Vermont Medical Center (UVMC) was called to participate in what she was told would be a pregnancy that failed to go to term through no fault of the mother's own. However, upon arriving in the operating room, she realized the story was different. It was an elective late-term abortion. "You're going to hate me for this," one of the assistants in the operating room told her. The nurse had to assist in that abortion, even against her conscience.

Some time later she left that position but also decided to file a complaint with the Office for Civil Rights of the U.S. Department of Health and Human Services (HHS/OCR), which is the agency in charge of receiving, processing and filing this type of complaint in this country. Her case was not isolated; ten other nurses also had to participate in abortions against their will and conscience. In the initial phase, the lawsuit was successful and ran its course. But on July 30, 2021, the U.S. Department of Justice (DOJ) voluntarily dismissed the lawsuit against CMUV without obtaining any binding settlement that would restore or acknowledge the nurses' violation of their conscience rights.

In the United States, there are federal laws that protect the conscience of health professionals (doctors, nurses, researchers, etc.). Under these rules, healthcare institutions (hospitals, clinics, medical research centers) that receive federal funds are prohibited from forcing their employees - healthcare personnel - to engage in professional practices contrary to their moral or religious convictions, including abortion, assisted suicide, euthanasia, sterilization and related research activities. Nor may such institutions retaliate or discriminate against those who refuse to participate in such procedures. These federal regulations are primarily grouped into three laws: "Church Amendments" to the Public Health Service Act; the "Weldon Amendment"; and a section of the "Affordable Care Act," passed under President Barack Obama in 2010. Although they appear to be infallible laws, they have not been fully effective and their implementation seems to depend on the presidential administration in office. 

What happens when a health care professional feels that his or her conscience rights were violated, as in the case of the CMUV nurse? One should go to the HHS/OCR Office to initiate the complaint. If the case proceeds, the agency will contact the government or facility involved and send a "notice of violation" in order to achieve voluntary compliance with the federal conscience protection law. In the event that the hospital or health care provider ignores the notice, HHS/OCR may request law enforcement agencies to take various legal actions against the facility, which may result in a total cut-off of federal funding as well as fines in varying amounts. The third option, depending on the presidential administration in office, is to dismiss a legitimate claim, as happened in this case of the CMUV nurse.

After reviewing the complaint filed by the nurse and deeming it appropriate, HHS/OCR sent CMUV a conscience rights violation notice in August 2001.9 The notice noted that the Church Amendments created an unconditional right for health care personnel to refuse to participate in abortions. That alert noted that the Church Amendments created an unconditional right for health care personnel to refuse to participate in abortions. The text indicated that the duty to enforce the law and allow accommodations rested with health care institutions, not health care professionals. Following the violation issue issued by HHS/OCR, the Department of Justice (DOJ) filed a complaint against CMUV on December 16, 2020. The complaint stated that the violation was due to a pattern of discriminatory CMUV practices and policies against health care professionals who refused to participate in abortions because of their religious beliefs or moral convictions. However, on July 31, 2021, the U.S. Department of Justice (DJO) dismissed the lawsuit and HHS/OCR withdrew the notice of violation without obtaining anything or reaching a binding settlement or action to redress the harm caused to the nurse and correct the illegal practices.

In response, Cardinal Timothy M. Dolan, Archbishop of New York and Chairman of the Committee on Religious Liberty, and Archbishop Joseph F. Naumann, Archbishop of Kansas City and Chairman of the Committee on Pro-Life Activities of the U.S. Conference of Catholic Bishops (USCCB), noted that the DOJ was failing in its duty to enforce federal law: "It is hard to imagine a more appalling violation of civil rights than being forced to terminate an innocent human life. HHS/OCR found that CMUV forced a nurse to do just that against her religious beliefs. This is not only profoundly wrong, it is also a violation of federal law. We call on the administration in office to uphold the basic dignity of our nation's health care workers by reopening this case; and we call on Congress to pass an (effective) Conscience Protection Act so that doctors and nurses can defend their own conscience rights in court."

For their part, a group of 80 Republican lawmakers from both chambers, including Marco Rubio of Florida, James Lankford of Oklahoma, Tom Cotton of Arkansas and Andy Harris of Maryland sent a letter to Attorney General Merrick Garlanda and Health and Human Services Secretary Xavier Becerra, asking for explanations: "Your handling of this case constitutes a profound miscarriage of justice and a repudiation of your commitment to enforce federal conscience laws for Americans of all religious faiths, and especially for doctors, nurses and other health care professionals who oppose abortion. Their actions send a signal to employers that they do not need to comply with the law because law enforcement agencies will not force them to comply. We demand a full explanation of these actions by your agencies." This letter from the congressmen was also supported by the USCCB and several physician associations and pro-life civic groups, including the American Center for Law and Justice, Ethics and Public Policy Center, Ethics and Religious Liberty Commission, and Family Policy Alliance.

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