Ten nurses at a New Jersey hospital have filed a lawsuit claiming the hospital’s new policy requires them to assist in performing abortions.
They sued under a federal law which prohibits discrimination against any employee for refusing to “perform or assist in the performance of such a procedure or abortion on the grounds that his performance or assistance in the performance of the procedure or abortion would be contrary to his religious beliefs or moral convictions.”
Basically, any institution that gets federal funds can’t terminate or demote an employee who doesn’t want to perform or assist with an abortion. (Or who does want to.)
This regulation is what was left of a Bush-era edict (called the “Church Amendment”) after Obama got done with it. The Obama administration said that the old version would allow almost any hospital personnel to refuse to in any way facilitate an abortion. Health and Human Services Secretary Kathleen Sebelius called the Bush version “overbroad.”
I think she has identified exactly the problem with the new language, though. The current version has similar problems to the old one. The way it reads, a nurse or doctor can rightfully object to participation in any step of the process.
Which is exactly what has happened here.
University of Medicine and Dentistry of New Jersey officials claim that since the implementation of the new policy, it has not required objecting nurses to assist in or perform an actual abortion. The plaintiffs are nurses in the surgery unit, so naturally they encounter patients who are at the hospital for abortions. According to the hospital, the nurses have only been required to care for patients before and after the procedure.
It is exceedingly reasonable to require surgical nurses to provide care to patients even if they don’t like what the patient is there for. What if the nurse had a moral objection to heroin use? Would we think they should be allowed to opt out of so much as getting that patient a drink of water? What about caring for murderers? Should medical ethics require that they be allowed to refuse care? Doesn’t seem right to me.
Even so, the plaintiffs allege that requiring them to care for patients before or after an abortion procedure violates their rights under the Church Amendment.
Unfortunately, the broad language of the statute might support their position. It could be interpreted to mean that the nurses can claim the conscience exception if they are required to give care in even those tangentially-related-to-abortion circumstances.
Which gets to the crux of the problem. Conscience exceptions allow people in positions of trust and power to impose their version of morality on people who rely on them for care. It just isn’t right, and it could jeopardize the health of people who need emergency care.
The good news is that at least one federal court has found that medical staff don’t have a right to sue under the Church Amendment. In November 2010, the Second Circuit Court of Appeals affirmed a lower court that threw out a lawsuit by a nurse who claimed she’d be forced to participate in a late-term abortion. The Second Circuit held that Congress didn’t intend to give nurses the right to sue in that situation.
New Jersey isn’t in the Second Circuit, so this precedent isn’t binding. But hopefully the judge that hears this case will find it persuasive. Even better, Barack Obama should clarify the exception and make it more clear what health workers can opt out of. The Church Amendment as it stands is a vague, unhelpful mess. It needs serious revision before it’s of any legitimate use.