Doctors or Nurses Forced to Participate in Abortions Not Allowed to Sue for Discrimination

Opinion   |   Wesley Smith   |   Jan 23, 2018   |   4:34PM   |   Washington, DC

The Trump Administration has proposed new federal rules–and proposed a new enforcement office–to strengthen the government’s administrative ability to protect medical conscience of healthcare workers who object to participating in certain procedures based on religious belief.

That’s fine and good, but it also reveals a significant problem of continuity. The Bush Administration favored stronger conscience protections for doctors and nurses. The Obama Administration was particularly hostile to medical conscience, limiting it to the extent permitted by law. Trump strongly favors it. A future administration will have its own views.

That leaves great uncertainty for medical employers and employees, but it also adds heft to the technocratic state.

A better approach would be to also allow those discriminated against to have a private right of legal action. Not only would such an approach be more efficient, but the threat of trial lawyers unleashed would dissuade many an employer from crossing the line.

Such a private cause of action doesn’t exist today under federal law, as the HHS Notice of Rule Making makes clear:

In lawsuits filed by health care providers for alleged violations of certain Federal health care conscience and associated anti-discrimination laws, courts have held that such laws do not contain an implied private right of action to seek relief from such violations by non-governmental covered entities. Adequate governmental enforcement mechanisms are therefore critical to the enforcement of these laws.

The case of a New York nurse who alleged that a private hospital forced her to assist in an abortion over her religious objections illustrates the point. The nurse filed a lawsuit in Federal court in 2009, but her case was dismissed on the ground that she did not have a private right to file a civil action against such a hospital under the Church Amendments.

I applaud the new emphasis, but I also think that administrative enforcement is inefficient, subject to political ebbs and flows, and often Byzantine.

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In contrast, opening the civil justice system to medical professionals who believe they were discriminated against for their moral beliefs in this context would offer a free market remedy to be applied in a free market system.

Congress should revise the law to permit private enforcement. So should states. Note: Wesley J. Smith, J.D., is a special consultant to the Center for Bioethics and Culture and a bioethics attorney who blogs at Human Exeptionalism.