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Pro-choice they're not

The Obama administration is working to overturn Bush-passed HHS regulations that try to give some teeth to existing federal conscience protections for doctors and nurses who do not wish to participate in abortions. (The regulations require institutions to certify their compliance and also provide an avenue of recourse for doctors and nurses who have grievances related to the conscience protections.)

This is particularly relevant since a federal judge has ruled that Cathy Cenzon-DeCarlo has no private cause of action against--i.e., cannot personally sue--a hospital that blatantly forced her to participate in an abortion by threatening her with loss of job and possibly loss of nursing license. The federal judge claims that the only mechanism for enforcement of the conscience protections in federal law is the action of the federal HHS. Meanwhile, Barack Obama's HHS says that it is working to remove the HHS regulations that enforce the conscience protections! In fact, the Obama HHS is even delaying a different lawsuit on the grounds that they are working on revising the regulations to rescind the conscience protection enforcement.

Perhaps the new Congress should expressly create a private cause of action in relation to conscience protections. That would circumvent our lawless executive branch.

Comments (10)

Just because their is no federal cause of action does not mean there is no state one. The states could step in and create one just as easily, if not more easily.

Of course, the pro-choicers would then claim allowing a cause of action for violation of conscience would be an infringement on the right to choose/access to abortion. I shudder to think how that ruling would come out.

I certainly agree, and ADF is suing under state law as well on the nurse's behalf. One way that enforcement at the federal level is supposed to work, though, is by withholding of federal funds. I think that would be entirely condign. Hadley Arkes suggested withholding of federal funds as a mechanism for enforcing the federal BAIPA, which in itself contains no enforcement mechanism. As far as I know, that never was done, even under Bush, but it appears that the Bush HHS intended that to be the mechanism for enforcing conscience protections.

I am guessing here, but I believe that the federal judge's opinion rests on the fact that Cathy C-D has no "cause for action" precisely because she did not actually get fired. That is to say, there was no adverse illegal employment action on her - she still has her job, because she folded and gave in to the threat. If she had been fired, and then sued, well that's a different story. Then she would have suffered specific harm that the law has a remedy for. Being "forced" to act in a way that is contrary to one's conscience, but is not illegal, does not generally have a legal remedy: it would only have a legal remedy by virtue of one created specially in law for that kind of case. And if, in this case, the only legal remedy created is one under the purview of HHS rather than the courts, then the judge may have been technically correct to say that she has no standing to sue on the matter. However, if she took the case to HHS, and HHS then blatantly ignored its own regs, THEN she might have standing to sue HHS in federal court on separate grounds.

It is indeed a horror that a hospital thought that it has a right to force someone to participate in an abortion. Our legal horizon is so screwed up that it is not clear how to legally attack such a grievous evil.

Tony, I haven't been able to get hold of the judge's ruling, but I don't think your guess is correct about her not actually being fired. I think that had nothing to do with it. Compare with non-discrimination law: Suppose that an employer said to a Muslim, "I will fire you if you don't curse Allah" or something like that, and the Muslim actually did curse Allah but then was really upset and made a claim of employment discrimination. The EEOC would (I was informed of this in a thread recently) either take up the case itself or give him a "permission to sue" slip of some kind. Nobody would say that there was no cause of action in the law because he wasn't actually fired. It would be a clear-cut case of religious discrimination because of the threat to fire.

Here it appears that what's happened is that the way the federal law is set up, there's no requirement to give the person the "permission to sue" letter if the federal agency doesn't take it up; there's just the action of the federal agency or nothing. As far as I can tell from reports the judge was making no judgment on the merits of her case vis a vis the on-the-books conscience protection, whereas he would have been doing so if your guess were correct. He would have been claiming that prima facie she had no case since she was not fired. As far as I can tell he was simply saying that private suits under conscience protection federal law are not provided for.

I'm not saying one way or another in the post whether the judge is right on that point. I've been trying to get Wesley J. Smith to write an article analyzing this and telling us whether it's true or not.

However, if the Obama HHS is her only hope for enforcement and the Obama HHS is at this very moment, by its own statement, planning to take out all the enforcement regulations for those very laws, then it's certainly a case of their not being an unbiased enforcer of the law. They will make the conscience protections a dead letter, regardless of whether people are actually fired or not.

I know it's only tangentially related, but I'd love to see how Douglas Kmiec and his followers would respond to this after he so ardently said that Obama was really about reducing the need for abortion. How does it make for a less 'abortifacient' culture by making someone who doesn't want to participate in an abortion. I simply don't see any other way to read these kinds of regulations except to enhance the abortion culture.

Absolutely, Tim H. But Kmiec was out there within nanoseconds of Obama's very early act of rescinding the Mexico City policy (about which similar comments could be made--how could this be making a "less abortifacient culture"?) defending that act of Obama's, so I guess he can defend just about anything. I have no respect for Kmiec at all.

Al, thanks for the link.

Am I off base here, but does the quote of the pertinent law at 300(a)7-c drop the all-important "not" in saying "may discriminate"? It must be so - otherwise there is no issue, the law permits the very act that was done.

Lydia is partly correct, the non-firing is not the critical point. I was incorrectly conflating that with my other point. And I was partly correct, in my other point: unless the law actually establishes the private suit as the remedy for the thusly constituted illegal discrimination, there is no power of private suit: for an act that is (but for the law) legal, only the law itself tells us what remedies are available, and in this case the law does not provide private suit as a remedy. Therefore, Cathy C-D has no standing to sue.

I am not very familiar with laws that constitute an arm of the administrative bureaucracy as the legal guardian (ipso factor judge) of wrongdoing, but apparently that's what this law does. Then the remedy envisioned by Congress is to petition HHS. Admittedly, under Obama this is not a high-return type of approach. But then you force the administration to reject the case, and then you take HHS to court for violating its own regs. If (in the meantime) HHS revises its regs, you sue in federal court for regulations that contradict the very intent of the law. Administrative organs have some interpretetive leeway, but only when they are implementing Congressional intent. If they write regulations that directly contradict the very purpose of the law, you can get the reg overturned.


I know you are focusing on the legal case, but the moral case is more interesting to me.

It seems to me that the legal case is greatly weakened by her caving on her principles. She participated in taking an innocent life rather than risk losing her paycheck.

This is why I am so skeptical of splashy media events like the Manhattan Declaration. We *say* we are going to take a stand, but how many of us are actually in jail or depending on charity because we have stood and refused to participate?


Kamilla, of course you're right that she should have refused and taken the consequences. I agree. But given the legal set-up I'm reporting here, even if she had and had been fired, etc., it appears that she has no legal recourse.

Now, this is kind of astonishing considering that most of us hear in the pro-life news about the conscience protections that supposedly exist in federal law and that we need to preserve, etc. From this suit it appears that even in really blatant cases, the unsympathetic executive branch that we presently have can simply stall on the matter, and therefore in effect there are no conscience protections in federal law unless Barack O. & co. want there to be! This is amazing. Especially amazing is the chutzpah of the Obama HHS in telling a court in another legal case, "Hey, we're thinking of revising the regulations so that we don't enforce that part of the law anyway, so just put this case on hold, okay?" And they can get away with that. No court orders to enforce the law, no "right to sue" letters issued to complainants, nothing.

Contrast that with the situation in frivolous employment discrimination cases on other issues. As discussed (explained to me) on another thread, if an employer tells a Muslim employee that the employer won't accommodate various obviously unreasonable demands, the employee can sue regardless of whether the executive branch is sympathetic or not. They have to issue a "right to sue" letter to the individual. Why doesn't the HHS have to do that in conscience protection cases? They should, otherwise we have the present situation.

But I agree that she should have refused.

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