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The Vanderbilt Abortion Decision: How Obama Can Better Protect Civil Rights

Vanderbilt University Medical Center made a welcome decision last week and removed from its nurse residency admission application a requirement that students admitted to its women’s health track agree to participate in training to provide abortions.

The decision came just 24 hours after attorneys at the Alliance Defense Fund, a nonprofit legal group, filed a complaint with the Office of Civil Rights (OCR) at the U.S. Department of Health and Human Services (HHS) challenging the requirement. Events moved so quickly after the complaint was filed that it is not at all clear that the HHS/OCR played a role in enforcing the law in this instance.

Of much greater importance is the prospect that the HHS/OCR will soon play no role in similar situations in the future.

The Vanderbilt case is a classic example of a conscience violation in the context of health care. Federal law has been clear on the issue since the early 1970s when the U.S. Supreme Court decision in Roe v. Wade struck down nearly all U.S. abortion laws. Lawmakers like the late Senators John Heinz (R–PA) and Frank Church (D–ID) were concerned about the interaction of federal health care, research, and financing programs with institutions and individuals wishing to exercise their right not to participate in abortion or other controversial procedures.

The Church amendment of 1973 (42 U.S.C. § 300a-7) included a provision that bars any entity that “receives a grant, contract, loan or loan guarantee” under various federal titles from “discriminat[ing] in the employment, promotion, or termination of employment of any physician or other health care personnel” because that person refuses to perform or assist in a “service or activity” that “would be contrary to his religious beliefs or moral convictions.” But this law is silent on key aspects of enforcement. Its reference to recipients of federal grants, contracts, and other funds both defined the scope of the law and carried the implication that federal funds could be cut off if the grantee refused to respect the conscience of health care employees and students.

The law did not make clear, however, how an individual impacted by an infringement of conscience should proceed to file a complaint, nor did it make clear how complaints would be investigated, allegations proved or disproved, and resolutions reached. The law was also silent on whether an individual suffering discrimination or coercion would possess a private right of action to seek redress after a violation occurred.

In late 2008, the Bush Administration sought to clarify this situation and issued regulations setting forth a complaint procedure involving the HHS/OCR. This simple step offered at least the hope that complaints would be taken seriously, investigated thoroughly, and moved forward toward resolution. Elections have consequences, however, and the Obama Administration suspended the regulations in March 2009.

There the matter has stood for nearly two years, as the Administration has said little other than that it is engaged in a review of the regulations. In the meantime, however, it has engaged in a bit of positive practice consistent with the regulations. After Catherine Cenzon-DeCarlo, a nurse at Mount Sinai Hospital in New York (an entity that receives federal funds from various sources), complained that she had been forced to participate in an elective second-trimester abortion, the regional OCR/HHS accepted the complaint and launched an investigation. The nurse also commenced an action in federal court, with the most recent result a ruling by a panel of the Second Circuit Court of Appeals that the Church Amendment does not imply a private right of action. The upshot is that the HHS/OCR investigation is for now the only game in town.

But the fate of such investigations is very much up in the air as a result of the Obama Administration’s suspension of the 2008 regulations. In an unrelated legal proceeding, the Justice Department responded late last year to a show cause order from the court to explain the Administration’s intentions regarding the 2008 regulations. The Justice Department stated that “HHS expects to have a final rule published in the Federal Register within sixty to ninety days—i.e., as early as January 31, 2011, and no later than March 1, 2011. HHS is working hard to finalize the rule in this time frame and should be able to do so.”

The outcome of this review is portentous for Mrs. Cenzon-DeCarlo. It is also portentous for potential nursing students at Vanderbilt and every other medical training institution in the country. Vanderbilt’s decision to modify its application process may well have turned out differently in a few weeks if the Obama Administration were to extract the teeth from the Church Amendment, suspend any pending investigations, and leave affected parties without a complaint process.

A civil rights law without an enforcement mechanism is just a noble sentiment. Mrs. Cenzon-DeCarlo and prospective nursing students would prefer to have noble careers.

The freedom of conscience is a core principle in medical care and many other aspects of community life. It was precious to our nation’s founders, and Congress has consistently reaffirmed it in legislation. Keeping such laws strong and giving complaints a full hearing and remedial opportunity are cornerstones of civility in a nation that seeks to mediate profound clashes of morality. The Obama Administration would do well to keep this precept in mind as it considers the next step for conscience regulations.


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