A federal appeals court has ruled that a nurse who was forced to participate in
an abortion against her will has no right to pursue legal action against her employer.
The Second U.S. Circuit Court of Appeals decided that while the actions by a hospital
in New York may have been illegal under federal law, the law in question does not
provide for private individuals to sue their employers.
The case involves pro-life nurse Cathy Cenzon-DeCarlo
who was employed by
in New York. DeCarlo was compelled to participate in a late-term abortion
of a 22 week-old unborn child in May of this year despite her objections. DeCarlo's
supervisors told her that the procedure was an "emergency"
even though the mother
was not in any medical danger. DeCarlo is a devout Catholic who had apprised hospital
officials of her religious objections to abortion. Yet hospital administrators told
her she would be subject to disciplinary action if she did not cooperate, up to
and including possible termination.
DeCarlo was forced to assist the abortionist as he dismembered the child with forceps
and pulled the body pieces from the mother's body. She was then required to collect
the body parts and place them in a specimen container, and take them to the specimen
area of the hospital. DeCarlo says the whole experience was like watching a horror
film, and that she has experienced great personal agony, nightmares, and sleepless
nights over the incident.
The actions of Mount Sinai Hospital would seem to be in direct violation of a federal
law known as the Church Amendment. Adopted by Congress in 1973, the same year as
the Roe v. Wade decision legalizing abortion, the law was intended to protect the
conscience rights of medical personnel who object to the killing of preborn children.
That law prohibits employment discrimination against medical personnel who refuse
to perform abortion or sterilization procedures on moral or religious grounds.
The Alliance Defense Fund filed suit against Mount Sinai Hospital on DeCarlo's behalf,
alleging that Mount Sinai was required to comply with the federal law because it
is a recipient of federal funding. The Second Circuit agreed with a federal district
court ruling that DeCarlo had no right to sue because the Church Amendment "does
not provide for a private, individual cause of action."
Joseph Ruta, lead counsel for the Alliance Defense Fund, says that health care facilities
should not be allowed to intentionally inflict emotional distress on an employee.
"It is illegal, unethical, and a violation of Cathy's rights of conscience as a
devout Catholic to force her to participate in a late-term abortion. An individual's
conscience is often what brings health care workers into the medical field. Denying
or coercing their conscience will likely drive them right out."
Mailee Smith, staff counsel for Americans United for Life, says the appeals court
ruling shows total disregard for the conscience rights of healthcare providers.
"The right of conscience is a fundamental right affirmed by our founders as well
as by the U.S. Supreme Court. By forbidding Ms. DeCarlo from suing her employer,
the Second Circuit has completely eviscerated that right."
Americans United for Life had filed a friend-of-the-court brief supporting DeCarlo's
claims on behalf of the National Association of Pro-Life Nurses, the American Association
of Pro-Life Obstetricians and Gynecologists, Physicians for Life, the Christian
Medical and Dental Association, and the Catholic Medical Association.
The scope and status of the conscience rights of medical professionals has become
more complicated due to recent actions by the federal government. In the waning
days of the Bush Administration, President George W. Bush implemented strong health
care conscience regulations clarifying the Church Amendment and another federal
law known as the Weldon Amendment. Shortly after his inauguration, President Barack
Obama initiated administrative actions to repeal those regulations.
The subject of conscience rights was a major issue during debate over President
Obama's national healthcare legislation. Many believe that the Church and Weldon
Amendments do not apply to the new federal health care bill and the insurance
exchanges it creates. The healthcare legislation ultimately adopted by Congress
prohibited insurance plans from discriminating against any health care entity
because of their unwillingness to provide or refer for abortions. But the
language does not protect health care workers from discrimination by entities
other than health plans, such as federal, state, and local governments, or by
hospitals and clinics themselves.
DeCarlo hopes that her lawsuit will continue to shed light on the issue. "I emigrated
to this country in the belief that religious freedom is sacred here. Doctors and
nurses shouldn't be forced to abandon their beliefs and participate in abortion
to keep their job."