February 3, 2011 | Commentary on Protecting Life
One spring morning in 2009, Catherine Cenzon-DeCarlo arrived at the job she loves at New York’s Mount Sinai Hospital. By the time the nurse’s shift was over, though, her peace was shattered.
That day, Mount Sinai officials compelled Cenzon-DeCarlo to help doctors perform an abortion late in the mother’s second trimester. This forced participation violated personal convictions she told the hospital about when she was hired five years earlier.
Cenzon-DeCarlo’s ordeal began one of the most striking and important “conscience” cases in modern times. Indeed, her case will help determine whether the Obama administration intends to enforce the nation’s “conscience laws” in the places where Americans receive health care.
It’s a sleeper issue. And it deserves much wider attention.
Conscience laws occupy an interesting place in American history. Legislators usually frame such measures in religious terms, with specific and limited application.
Most of us know the law traditionally has recognized a narrow category of conscientious objection, under which an American may be exempted from compulsory military service. A conscientious objector is defined as someone against participating in all wars, not just some wars. Typically, a granted exemption will require alternative service in a noncombatant role.
Congress recognized something similar just last year in passing the health care bill. Although it doesn’t include a general religious exemption from the mandate that individuals purchase health insurance, the law provides two exemptions for members of specific faith communities.
One exemption permits “recognized religious sects” such as the Old Order Amish, already exempt from the Social Security system, to refrain from participating in insurance plans. The rationale: Such arrangements clash with the tenets of their faith.
The other exemption allows members of religious groups called “health care sharing ministries” to avoid the mandate to buy insurance. Participants must have common religious beliefs and their ministries must be recognized by the Internal Revenue Service as tax-exempt nonprofits. Rather than buy insurance, members pay annual dues and agree to pay each other’s medical bills through donations as those bills come in.
The federal conscience laws regarding particular practices in health care originated with legalization of abortion nationwide in 1973. Congress foresaw controversial ramifications of the Supreme Court’s Roe v. Wade decision that year.
Could an organization that won a federal research grant require employees to engage in fetal tissue research? Could a physician in a federally funded program be forced to participate in abortions? Would an applicant to medical or nursing school face a similar mandate?
A bipartisan group of senators, led by Republican John Heinz of Pennsylvania and Democrat Frank Church of Idaho, successfully offered amendments to protect the conscience rights of health care providers in such situations. In 2004, the late Rep. Henry Hyde and former Rep. Dave Weldon, a physician, added a third conscience protection to the annual spending bill for health and human services.
This patchwork of laws expressed a noble, and in fact civilizing, idea. If our nation is to live with its deepest differences over issues as contested as abortion, cloning and assisted suicide, we must provide room for individuals to avoid participating in practices that offend their moral or religious sense.
These situations aren’t the same as compulsory service in wartime, where an arguable claim exists on the service of every citizen. Instead, each is an elective, controversial practice.
The defect in this patchwork is lack of clear guidance on enforcement. In 2008, the Bush administration attempted to fix the problem by making clear that alleged violations could be referred to the Office of Civil Rights at the Department of Health and Human Services and investigated like other federal civil rights complaints.
In March 2009, though, the new Obama administration suspended these regulations. Administration lawyers recently told a federal court that they soon will resolve the situation.
If we truly want civility in public life, effective conscience laws should be among the first principles we embrace.
Charles A. Donovan is senior research fellow in the DeVos Center on Religion and Civil Society at The Heritage Foundation.
First appeared in the Youngstown Vindicator