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
The push to mainstream abortion in the health professions began in the early 1990s. Pro-choice advocates feared that abortion providers were being steadily driven from the field, isolating those who remained and leaving them vulnerable to threats and violence. They contended that what the Supreme Court had declared a right in Roe v. Wade could become an illusion if women were unable to find providers or if they encountered stigma or hostility when they tried. A sense of solidarity under siege developed among abortion advocates and their allies in the professions.
In his 1991 book "The Hollow Hope," University of Chicago Law Professor Gerald Rosenberg observed that many hospitals and OB/GYNs still refused to perform abortions, adding that "an increasing percentage of obstetrics and gynecology residency programs do not provide training for it." Abortion would be a genuine right, Rosenberg argued, only when it was mainstreamed.
These fears were not unfounded. In 1993, Randall Terry of the pro-life group Operation Rescue declared at a Florida rally that "the weak link is the doctor. We're going to expose them. We're going to humiliate them." A few days later, a Florida abortion doctor was murdered. Later that year, another was injured, and in 1994 four people were killed in two separate abortion clinic attacks. A doctor was injured in a third attempt. From 1995 to 1998, a number of doctors, nurses and security guards were killed or injured in five separate incidents. After a 10-year lull, another doctor was murdered in 2009.
In 2010 Emily Bazelon wrote an article in the New York Times that outlined a determined effort to mainstream abortion within the health professions. The first moves were to require abortion training for OB/GYNs, shifting training and practice into teaching hospitals and encouraging mainstream doctors to become abortion providers. Bazelon called this a "deliberate and concerted counteroffensive" in which "abortion-rights advocates have quietly worked to reverse the marginalization."
As part of this agenda, Bazelon reported, the Accreditation Council for Graduate Medical Education (ACGME) ruled in 1995 that, with limited exceptions, OB/GYN residency programs must include abortion training or lose accreditation. Congress fired back by leveraging federal funding to block ACGME.
Some argue that little changed over the next decade. A 2009 American Congress of Obstetricians and Gynecologists (ACOG) opinion noted, "The number of abortion providers has decreased over the past two decades," falling 11 percent from 1996 to 2000 and another two percent in the next five years.
ACOG also observed that "highly charged emotional and political debate stigmatizes the women who undergo abortion and the providers who offer abortion," adding that this "negative atmosphere may be a deterrent to training providers and offering reproductive health services."
Dr. Donna Harrison, director of research and policy at the American Association of Pro-Life OB/GYNs, is well aware of ACOG's concern. "Physicians who have taken the Hippocratic oath have vowed never to perform abortion or euthanasia, which is a thorn in the side of the pro-abortion/pro-choice agenda," she said, "and thus a concerted effort is being made to eliminate the physician of conscience from the practice of obstetrics and gynecology."
Embattled professional norms
The national OB/GYN licensing board stoked these fears in 2007 when it announced it would take binding ethics guidelines from ACOG, which is a voluntary organization. ACOG had recently published an opinion that would require doctors to provide active referrals for abortion.
Then-HHS Secretary Michael Leavitt, who is now a member of the Deseret News editorial advisory board, began writing new HHS regulations to clarify abortion conscience protections. Among other things, the new rules made clear that threatening conscientious objectors through professional licensing would violate federal law. The rules also clarified the definition of "assist" in a manner that would have supported the New Jersey nurses in 2011.
The new HHS rules became intensely controversial. Critics contended they expanded protections beyond the statute. The result, they argued, could be professional chaos. In addition, critics viewed the compliance statements as onerous and overly vague legal traps.
In 2008, the Obama administration moved quickly to suspend the new HHS regulations, and in 2011 HHS Secretary Kathleen Sebelius officially reversed them, leaving only the complaint system in the HHS Office of Civil Rights — the system that has yet to respond to DeCarlo.
Vanderbilt pushes the limits
In the absence of HHS support, pushback on conscience defenses continues. In 2011 Vanderbilt University's nursing program began requiring program applicants to pledge that they would participate in abortions. "If you are chosen for the Nurse Residency Program in the Women's Health track," the application stated, "you will be expected to care for women undergoing termination of pregnancy. … If you feel you cannot provide care to women during this type of event, we encourage you to apply to a different track."
The Alliance Defense Fund filed a complaint with HHS, and Vanderbilt quickly backed down. "Christians and other pro-life members of the medical community shouldn't be forced to participate in abortions to pursue their profession. That's what federal law says, and that's why Vanderbilt is doing the right thing in changing its policy and application," said ADF Legal Counsel Matt Bowman.
Other medical school entrance practices are harder to monitor. A 1996 study by two doctors at the University of Texas-Houston Medical School, for example, contains piles of interview notes characterizing candidates' religiosity, rigidity and presumed psychological disorders based on religious perspectives and attitudes toward abortion.
Sample comments from interviewer notes included: "He has found God but does not hear voices;" "Negative view of candidate who said she was Catholic and this influenced her view on abortion;" "Thoughts on euthanasia and abortion were downright naive;" "Applicant would dissuade and would not refer patient for abortion;" and "Do not recommend acceptance due to indecisiveness on abortion and pulling the plug."
Contraception blurs lines
Even as medical schools and nursing programs began filtering applicants, the professional norms conflict expanded beyond surgical abortion into pharmaceuticals, blurring the line between them. In the early 1980s, a drug called RU-486 emerged that induces abortion well into the first trimester.
Newer drugs pushed the line back to the first hours or days after intercourse. Two widely used emergency contraceptives (ECPs) are Plan B and Ella, though the term "contraception" itself is disputed by pro-life OB/GYNs. Much hinges on whether one defines life as beginning at conception or implantation.
In 1998 Susan Cohen, now the director of governmental affairs at the pro-choice Guttmacher Institute, defended ECPs by distinguishing them from RU-486, which she called "clearly a method of abortion." Unlike RU-486, she wrote, "ECPs cannot disrupt an established pregnancy, and, therefore, cannot under any circumstances cause an abortion."
The newest ECP is Ella, approved by the FDA in 2010. "Ella is really just a second-generation RU-486," Dr. Harrison said, adding that it is more controversial than Plan B because while Ella can be used to prevent ovulation and implantation, it can also destroy an embryo after it implants — even months into a pregnancy when used in high doses.
Seattle pharmacy under fire
When the state of Washington began requiring pharmacies to carry ECPs in 2007, the owner of two local grocery stores objected. His alternative was a "facilitated referral," meaning he would "refer the customer to a nearby provider and, upon the patient's request, call the provider to make sure the product is in stock."
In February 2012 the U.S. District Court struck down the state regulation, noting that none of the "customers have ever been denied timely access to emergency contraception" and pointing to various secular reasons a pharmacy may not stock certain drugs. The court concluded that "literally all of the evidence demonstrates that the 2007 rulemaking was undertaken primarily (if not solely) to ensure that religious objectors would be required to stock and dispense Plan B." In short, the court held that the policy was crafted to sideline religious objectors.
Not about access
The conscience vs. choice battle is at an uneasy stalemate at the moment. Congressional statutes hold professional organizations and medical schools at bay. Some states (like Kansas) push conscience protections to extremes, while others (like Washington) push them aside. The pressure on pro-life professionals is real, but voices of moderation are also in play.
"No one on the pro-choice side is saying they want to eliminate anyone with religious objections," said Luke Goodrich at the Becket Fund for Religious Liberty, which defended the Seattle pharmacist against the Washington emergency contraception rules. "They say they are trying to ensure access to health care, abortion and emergency contraception. But when you scratch beneath the surface, you see an attempt to suppress conscientious objection even when it doesn't inhibit access."
Goodrich points to his client in Washington, noting that over 30 pharmacies within a five mile radius dispensed the disputed drug, and that his client would even call ahead to make sure they had it in stock.
"This isn't about access," Goodrich concludes. The goal, he said, is to "ensure that no one would ever encounter a health care professional who disagrees with the treatment they are seeking on religious or moral grounds."
But Adam Sonfield at the pro-choice Guttmacher Institute seems willing to compromise, supporting the right of conscientious objectors to not directly engage in abortion. "(But) there are some lines you can't cross," Sonfield added. "You can't deny information. You can't deny care in an emergency, and if you refuse care, you must make sure the patient isn't abandoned."
"We have seen a lot of laws that try to push these limits," Sonfield said. "For example, some would allow a doctor to refuse to tell a woman of a problem on a sonogram because she might turn around and have an abortion."
Striking a balance
To the degree that abortion is legal, the pro-life side faces compromise on information and referrals — just as the pro-choice side is required to compromise on refusals.
Gallup's polling on abortion has been remarkably consistent for nearly 30 years. Current polls show 47 percent of Americans consider themselves "pro-life" and a matching 47 percent "pro-choice." Only 26 percent favor legalizing abortion under any circumstances, while just 20 percent oppose legalization in all circumstances. Half (51 percent) would legalize abortion only in certain circumstances.
Given such divisions, the search continues for a sustainable solution that somehow smooths the jarring chasm between the conscientious objector and the patient. An obvious answer is a facilitated referral like that offered by the Seattle pharmacy. But many pro-life health care providers balk at actively referring for abortion, and the controversial 2008 HHS rules were largely a response to calls for mandatory referrals. For many, running roughshod over this concern would undermine conscience protections.
Voices on both sides agree that the need for referrals could be reduced through broad prior notice about a provider's philosophy. In the case of pharmacies or OB/GYNs, this would allow most patients to align themselves philosophically in advance of need or to have backup plans in mind.
One ideal articulated by the American Pharmarcists Association (APhA) is that the objector "step away, not in the way." At a minimum, this means a scrupulously avoiding lecturing the patient. But some doubt whether any face-to-face refusal can be frictionless.
APhA also supports establishing systems that would protect a professional's right to conscientious refusal while ensuring the patient's right to obtain legally prescribed treatments. The best-case scenario, APhA holds, is "seamless to the patient, and the patient is not aware that the pharmacist is stepping away from the situation."
Such systems may be easier for nurses, who are embedded in institutions, than for pharmacists or doctors, who often stand at the front lines. Cathy DeCarlo thought she had struck such a seamless balance for five years at Mt. Sinai before she was blindsided on that still unexplained day in 2009.
So equilibrium remains elusive. If Goodrich is right that the real objective in some quarters is not to smooth access but to remove dissent altogether, then advocates for conscience may have a long way to go.
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