Alliance Defense Fund
Also read: Conscientious objection
When Cathy DeCarlo arrived at New York's Mt. Sinai Hospital one Sunday morning in May 2009, she was ordered to assist in an abortion. A conscientious Catholic and a nurse, DeCarlo was on record as being unwilling to do abortions. She had first raised the matter when hired in 2004, and the hospital — in compliance with state and federal law — had agreed.
Because of this, DeCarlo assumed that she was there to help assist in a post-miscarriage treatment. But as she scanned the chart she realized she was actually being asked to assist in the abortion of a living 22-week-old pregnancy, just two weeks shy of full viability outside the womb. She asked her supervisor for a substitute. After checking with her own boss, the head nurse told DeCarlo she must assist with the abortion or face disciplinary action, according to court documents.
DeCarlo protested that the abortion was not an emergency. The patient was listed with pre-eclampsia, a serious but common high blood pressure condition occurring after the 20th week of pregnancy. Rarely requiring drastic measures, it is usually treated with bed rest. DeCarlo noted that the mother was not receiving magnesium sulfate, a key indicator of emergency pre-eclampsia. Her protests availed nothing. She was forbidden to seek a replacement. Mt. Sinai hospital declined to comment for this article.
Fearing for her family's future should her career be compromised, DeCarlo assisted in the abortion. In an interview with the New York Post, she described the experience as "a horror film unfolding." In the aftermath, she began having nightmares and insomnia. "I couldn't believe that this could happen. I felt violated and betrayed," she said.
It was the specter of a DeCarlo case that prompted Congress in 1973 to pass the Church amendments, named after then-Sen. Frank Church, D-Idaho. The legislation was meant to protect health care professionals from being forced to assist in abortions in the aftermath of Roe v. Wade. But the drafters of the law didn't include a path to follow when rights were violated. At the time, it was common for courts to assume that victims of conscience violations themselves could sue to enforce their rights, but legal doctrine later shifted, leaving the conscience protections without meaningful enforcement — unless the Department of Health and Human Services (HHS) chooses to act.
The incident at Mt. Sinai violated hospital policy, state law and federal law, yet nearly three years later, DeCarlo remains without a remedy. The hospital shrugged her off. Her case in state courts is still pending. Federal courts held that she lacked a "private right of action" and must rely on HHS. Two years after acknowledging her complaint, the Office of Civil Rights at HHS has still not responded.
DeCarlo stands at the front lines of a grinding war over abortion and professional norms in the health care industry. Many pro-life physicians, nurses and now even pharmacists feel they are being asked to choose between conscience and career. Pro-choice advocates, meanwhile, believe that refusal to serve, inform or refer patients stigmatizes the patient, undermines care and dangerously isolates providers. In recent months, conflict has escalated in hospitals, medical schools and professional organizations. Both sides feel that the other is upsetting a balance — either by shifting from objecting to a procedure to obstructing it, or by forcing objectors to choose between career and conscience.
Twelve New Jersey nurses faced this dilemma in October 2011 when their hospital announced they must undergo abortion training and begin assisting in abortions, threatening them with termination if they refused. Challenged in federal court by the Alliance Defense Fund, a legal nonprofit focused on religious liberty, the hospital responded that the nurses had no "private right of action." Unwilling to test its claims in court, the hospital settled on all key points, agreeing in December 2011 not to force the nurses to assist in abortions.
The abortion stigma wars
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