Attacking the conscience rights of their own members

Like the National Association of Social Workers, which released a statement last May 2010 attacking the conscience rights of its members and subordinating them to client autonomy (see http://www.socialworkers.org/ldf/legal_issue/default.asp ), the American College of Obstetricians and Gynecologists (ACOG) has reaffirmed its notorious 2007 Ethics Committee position #385 on the limits of conscientious refusal in reproductive medicine.

Odd that they persist in describing the killing of unborn children as a part of "reproductive medicine" since abortion seldom has anything to do with treating illness, and is never about doing no harm, or reproduction, and violates the Hippocratic Oath!

In a forthcoming piece in the Journal of Social Work Values and Ethics, I conclude:

In the case of the life issues, the issue at stake is the fundamental moral proscription on the intentional taking of innocent human life. This has been a basic principle of ethics for millennia, an exceptionless norm which binds the consciences of all in societies where the conscience is recognized at all. To kill justly requires at least that the person is not innocent (as in capital punishment or enemy soldiers in a just war); or is not a fully human person (as has been argued in the case of Blacks, Jews, and unborn babies); or that killing is not the intent but an unintended side effect (as with deaths of nearby civilians from the bombing of a military target).

Of course, moral relativists, situationists, consequentialists, and ethical emotivists may deny the existence or binding nature of such a proscription on the killing of innocents. I will not take up here the objections to these stances in moral philosophy, but simply note that if it is wrong to kill a person, then it is also wrong to get someone else to do it. If it is, as I believe, a grave evil for me to murder my spouse, it is no less wrong to hire someone else to do it for me.

None of this has anything to do with imposing my views on the client, as anti-exemptionists and militant secularists often claim. Patients and clients have an uncontested moral right to informed consent and informed refusal. But this is not the issue, as Pellegrino (2008) argues. The client may find abortion morally permissible and it is certainly legally permissible in the United States. I respect her right under law to decide to have an abortion and will not condemn, moralize, or argue with her. But this is not the issue. “Conscientious objection, “ as Pellegrino (2008) says, “implies the physician’s right not to participate in what she thinks morally wrong, even if the patient demands it. It does not presume the right to impose her will or conception of the good on the patient” (p.299).

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ACOG Again Denies Conscience Rights of Doctors on Abortion

by Bill Saunders | LifeNews.com | 11/29/10 2:02 PM

The hostilities toward conscience rights are abundant. This month the American College of Obstetrics and Gynecology (ACOG) reviewed and reaffirmed the 2007 Ethics Committee Number 385, entitled The Limits of Conscientious Refusal in Reproductive Medicine.

And last week a pro-life nurse was denied the right to sue the hospital where she was forced to participate in abortion. There has never been a greater need to pass comprehensive conscience protection measures than there is now.

The ACOG Ethics Committee rule requires pro-life physicians to refer for abortions. Furthermore, it disparages the notion of conscience to nothing more than a subjective feeling. It suggests that pro-life physicians should relocate in order to better refer patients to nearby abortionists. And it proposes that patient autonomy trumps a physician’s right to conscience.

These rules get their teeth when they are coupled with the requirements for board certification found in the 2011 Bulletin for Basic Certification in Obstetrics and Gynecology from the American Board of Obstetrics and Gynecology (ABOG). Section III Part F of this Bulletin explains that an individual can have his or her board certification revoked if he or she acts in “violation of ABOG or ACOG rules and/or ethical principles.” This means that refusing to conform to the ACOG recommendations could result in the loss of livelihood for healthcare providers.

Another example of antagonism toward conscience protection came from the 2nd Circuit Court of Appeals this week, when it denied Catherina Lorena Cenzon-DeCarlo the right to sue Mount Sinai Hospital in New York for forcing her to participate in the abortion of a 22-week unborn child. This nurse asserted her rights under the Church Amendment, the 1973 law designed to protect healthcare practitioners from being coerced into participation in abortion. Unfortunately, the court did not recognize an individual’s right to enforce that freedom. Clearly, there is a great need to strengthen conscience protection laws.

The new Congress has the opportunity to further establish conscience protection for healthcare providers like Catherina DeCarlo from coercive employers or board certifying organizations. The new Congress should make it a priority to pursue a law that will make the Hyde/ Weldon Conscience Protection permanent.

Hyde/ Weldon prohibits federal, state, or local governments from discriminating against any institutional or individual healthcare entity that does not provide, pay for, provide coverage of, or refer for abortions. This amendment has a broad scope of protection—but Hyde/Weldon is an appropriations rider that is subject to annual renewal. The way to make the protection stronger is (1) to make Hyde/Weldon permanent, and (2) to include an express remedy for healthcare providers and entities, allowing them the right to sue for damages when their rights are violated.

Retrieved December 5, 2010 from http://www.lifenews.com/2010/11/29/wbs-109/?pr=1

Conscience clause laws eviscerated in U.S.?

James S. Cole | Monday, 29 November 2010

Have US conscience clause protections been eviscerated?

An American nurse who was forced to participate in a late-term abortion has effectively nowhere she can lodge a grievance.

Can an American nurse refuse to participate in a medical procedure repugnant to her conscience? As of last week, it appears that the answer is no. A Federal Court has ruled that a nurse who was told to assist in a late-term abortion or lose her job cannot file a grievance.

Here is the legal background.

A federal statute known as the "Church Amendment" prohibits an institution that receives federal money under certain programs from discriminating against an individual who either participates or refuses to participate in an abortion. (The statute is named for its sponsor, the late Senator Frank Church, not for any religious organization.) On November 23, 2010, the United States Court of Appeals for the Second Circuit ruled that individuals cannot file suit to vindicate their rights under the Church Amendment. (Cenzon-DeCarlo v. Mt. Sinai Hospital, no. 10-556 (2d. Cir. 11/23/10)).

Catherina Cenzon-DeCarlo worked as a nurse at Mount Sinai Hospital in New York City. She sued the hospital in July2009, alleging that its management forced her to participate in a late-term abortion, despite her written conscientious objection that she had provided on the hospital’s personnel form when she was hired. Furthermore, she claimed that when she filed a personnel grievance after the abortion, Mount Sinai attempted to coerce her into signing a consent to participate in abortions in the future.

The federal appellate court dismissed Ms Cenzon-DeCarlo’s case without a trial. It said that Congress had not provided a "private cause of action" for enforcement of the statute. In other words, Congress had not allowed an individual to file a lawsuit in federal court when his or her rights were violated. So,iIf Ms Cenzon-DeCarlo’s has a legal remedy at all, it lies in the courts of New York State. This is not a surprising result, for in the past 30 years or so, the US Supreme Court has turned remarkably hostile to allowing private parties to file suit in federal courts to protect rights granted under federal statutes, if the statutes do not explicitly allow it.

This attitude shifts responsibility for protection of individual rights onto the Federal government , including the conscience-rights protections under the Church Amendment. This is exactly what the Bush Administration attempted to do when it promulgated regulations in December, 2008 to enforce federal conscience clause rights. The enforcement mechanisms would have begun with the Office for Civil Rights, which was designated in the regulations “to receive complaints of discrimination and coercion based on the healthcare conscience protection statutes . . . [and to] coordinate handling of complaints with the staff of the Departmental programs from which the entity, with respect to whom a complaint has been filed, receives funding…” Annual certifications of compliance by the funded hospitals and other institutions would be required under the Bush regulations. HHS could ultimately withhold federal money from institutions that violated the conscience rights of protected individuals.

Contrary to some rather histrionic claims from pro-abortionists, the 2008 regulations did not enact any new rights or restrictions. They simply provided the means to initiate federal administrative enforcement remedies for the rights which had already been guaranteed in the Church Amendment.

Within 60 days of taking office, the Obama Administration effectively cut off the enforcement of conscience clause rights by announcing an intent to rescind the Bush regulations. The new management of HHS asserted the need to give further consideration to the issues and “to review this regulation to ensure its consistency with current Administration policy.”

True to its habit of making grandiose announcements and then waffling or reversing course, the Administration has not actually carried out its announced intent, much to the chagrin of some pro-abortionists. In fact, the President told Catholic journalists in 2009 that he intended to leave “robust” conscience clause protections in place that would "certainly not be weaker" than the Bush regulations. No official rescission of the Bush regulations has appeared in the Federal Register, although no replacement regulations for the Bush regulations have been issued, either.

However, now there is no need for the Obama Aministration to alter the old regulations. The Bush regulations are just as dead as if they had been officially rescinded, as the Obama Administration obviously intended. They have not been printed in the Code of Federal Regulations for the years 2009 and 2010, where they should have appeared under 45 CFR part 88. We can be certain that if Ms. Cenzon-DeCarlo were to send a complaint to the Office for Civil Rights of HHS under the Bush regulations, it would probably be unacknowledged and would certainly be ignored.

As a result of the federal courts’ jurisprudence and the current Administration’s unwillingness to enforce the Church Amendment, federal conscience clause protections are dead letters.

Nor is success likely for complaints pursued in State Courts. They are not likely to provide remedies based on federal conscience rights, not only because of the general antipathy toward the pro-life side of abortion issues within the legal profession, but also because all American state courts are being overwhelmed by sheer numbers of pending cases in a time of stringent budget cuts. Expanding the possible number of lawsuits is not a favored position in current American jurisprudence.

Until the new Congress enacts specific legislation to allow individuals to vindicate the conscience rights Congress has given them (and overrides a Presidential veto), or until a new Administration is inaugurated that will live up to its duty of enforcing the laws on the books, federal conscience clause protections might as well not exist.

There is an old legal maxim, “Where there is a right, there is a remedy” (“Ubi jus ibi remedium”). The converse applies, too: Where there is no remedy, there is effectively no right.

James S. Cole graduated from Harvard Law School in 1978 and practices law in St. Louis, Missouri.

Retrieved November 30, 2010 from http://www.mercatornet.com/articles/view/have_us_conscience_clause_protections_been_eviscerated/