The Obama administration recently gutted conscience regulations for medical professionals. Issued by the Bush admin- istration, they were intended to ensure, in part, that health workers would not have to help perform abortions if they objected to doing so. Unfortunately, even with the Bush rules in place, such moral objections were ignored.
Now, it probably will be easier for the federal government to ignore complaints filed by those who have been compelled to violate their moral principles and assist in the performance of abortions.
Consider, for example, the 2004 case of operating room nurse Catherina Cenzon-DeCarlo. Ms. DeCarlo signed papers informing her employer, Mount Sinai Hospital in New York City, that she was not willing to help perform abortions. Yet, on May 24, 2009, the hospital compelled Ms. DeCarlo to participate in the abortion of a 22-week-old unborn baby, which was not prompted by any medical emergency.
Ms. DeCarlo sued Mount Sinai, understandably claiming that being compelled to assist in the abortion caused her “severe emotional distress.” In part, she relied on the Church Amendments, federal laws enacted in the 1970s that were designed to protect conscience rights. Ms. DeCarlo’s attorneys argued that she was protected by one of these provisions, 42 U.S.C. Section 300a-7(c), which prohibits organizations receiving federal money under certain statutes from discriminating against health care practitioners who are unwilling to perform abortions or sterilizations.
In December 2010, the 2nd U.S. Circuit Court of Appeals held that this Church provision did not contain a right for her to use the federal courts to redress her grievance against Mount Sinai. In other words, only the federal government itself could enforce the statute. Ms. DeCarlo is not appealing that decision.
Happily, the story does not end there. Our new pro-life House of Representatives is interested in the case and, more generally, in the conscience rights of pro-life health care providers. It is using its oversight powers to examine why Ms. DeCarlo’s rights were trampled by Mount Sinai, with seemingly no response to date from the federal government.
On Feb. 11, 46 House members wrote to Department of Health and Human Services (HHS) Secretary Kathleen Sebelius, asking her, among other things, to describe the status of the DeCarlo case at HHS. We should soon know whether HHS will address this clear violation of the relevant Church provision, or whether it will seek to find a pretext for overriding the Church provision in other federal laws. Indeed, the conscience-protection regulations established by the Bush administration in 2009 were put in place precisely to create a direct way for HHS to enforce the various statutory conscience-protection provisions and to help define those laws for the public and for the department.
Perhaps of greatest significance for conscience protection, the congressional letter asked for “a list of all federal funding provided to Mount Sinai from fiscal year 2008 to the present.” The House members also inquired as to what monies “were covered by conscience requirements under the Church Amendments and [asked HHS to] provide all documentation associated with funds covered by the Church Amendments.”
When an organization like Mount Sinai receives federal funding and appears to violate the terms and conditions of obtaining such funds, Congress does not need to imitate a potted plant and remain inert while waiting for executive branch action. The House can investigate and proceed on its findings. If HHS does not want to look into this case honestly and aggressively, the House can probe on its own and act punitively when the opportune time presents itself. It appears that this House of Representatives will not flinch from that responsibility.
We can only hope that Mount Sinai Hospital soon learns that elections have consequences and that the investigative powers of the Congress are not to be taken lightly. The relevant House committees can help deter future violations of the Church Amendments - even in the face of HHS inaction. They can vigorously investigate Ms. DeCarlo’s case, shame those who violated her rights and turn off the federal spigot to institutions like Mount Sinai that show contempt not just for the law, but conscience itself.
Chris Gacek is a senior fellow at the Family Research Council.