The Biden Administration has sent a clear message to all health care professionals who call themselves pro-life: “Your rights don’t matter. We won’t enforce them.”
We’ve been telling you for years about the ACLJ’s case on behalf of a University of Vermont Medical Center (“UVMMC”) operating room nurse who was coerced into assisting in an abortion even though her name was on a list of nurses who had moral and religious objections to such procedures and who were supposed to be able to opt out.
Our client – let’s call her “Rachel” (not her real name) – contacted us in early 2018. She told us about how she had been lied to by her supervisor (who was aware of Rachel’s religious objections to abortion) about the nature of a scheduled elective surgical procedure. Only after Rachel had “scrubbed in” to the operation and been met by the surgeon (who was also aware of her objection) with the words “Don’t hate me,” did Rachel realize that she had been deceived into participating in the legal killing of an innocent human being – an abortion. She immediately begged the charge nurse to relieve her. Her plea was denied even though the charge nurse could easily have swapped with Rachel.
The memory of that killing haunted Rachel’s dreams. Shortly after that day, she abandoned her career as an OR nurse, quit UVMMC, and moved her family to another part of the country. Only after a UVMMC doctor raised in a public meeting the issue of UVMMC’s policy toward elective abortions and the hospital’s apparent failure to protect the conscientious objections of its staff was Rachel persuaded to contact the ACLJ to talk about what had happened to her.
We met with Rachel, heard her heartbreaking story, and talked to witnesses who corroborated it. We also learned that Rachel was not the only UVMMC nurse who had felt pressured, deceived, and in some cases, coerced into participating in abortions despite having made their employer aware of their religious objections. After discussing with Rachel a variety of legal remedies she might pursue, she authorized the ACLJ to file a formal Complaint with the U.S. Department of Health and Human Services Office of Civil Rights.
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Our Complaint was assigned to the then-newly formed Conscience and Religious Freedom Division of HHS’s Office of Civil Rights (“OCR”). Two ACLJ attorneys sat with Rachel for six hours while she was grilled by senior investigative lawyers from HHS and the Department of Justice exploring every angle of her story and her background, testing, probing, and evaluating. The government lawyers then spent the next several days doing similar questioning of perhaps a dozen other UVMMC employees, looking for holes in Rachel’s story but finding instead nothing but corroboration and – more than corroboration – evidence that Rachel was not the only victim. UVMMC had done similar things to other nurses.
The result of OCR’s investigation was the issuance of a Notice of Violation against UVMMC in August 2019. The OCR found that UVMMC’s actions violated the Church Amendments, a series of 1973 laws passed in the wake of Roe v. Wade that, among other things, protect the right to opt out of abortion procedures of any health care employee who objects to participating in them on moral or religious grounds. As the Department of HHS explained it less than a year ago:
Paragraph (c)(1)(A) and (B) of the Church Amendments, however, creates an unqualified right for health care personnel to decline to participate in abortions without fear of adverse employment actions or loss of staff privileges. See 42 U.S.C. § 300a-7(c)(1). The Church Amendments put the burden on providers who choose to provide abortion services to create staffing policies that fully respect the consciences of its professional staff.
The Notice of Violation gave UVMMC 30 days to tell HHS whether it would agree to put its house in order when it came to protecting its employees’ rights, to come up with a plan to ensure that nothing like what Rachel endured would ever happen again, or have HHS impose its own remedies on UVMMC which could include withdrawing federal grant money, along with imposing other penalties.
We weren’t privy to the details of whatever negotiations went on between HHS and UVMMC. We presume they were less than satisfactory to one or both sides since, in December 2020, the United States Department of Justice sued UVMMC in federal court. The lawsuit alleged that what the University had done to Rachel was a clear violation of the Church Amendments and required the intervention of the courts to punish and remedy. The Complaint described in detail what the government’s investigators had uncovered in their investigation – not only Rachel’s living nightmare, but also that some 10 other UVMMC nurses had been illegally scheduled to participate in approximately 20 other abortions against their conscientious objections.
At the time this lawsuit was filed, we were pleased to report that – at long last – the Church Amendments finally had teeth, and we anxiously awaited the vindication of Rachel and her pro-life colleagues’ rights. But this week, the Biden Administration has taken the unprecedented step of having the Department of Justice voluntarily dismiss its own case without obtaining anything in return. Nothing. Zilch. Nada. The DOJ basically told UVMMC: “Yes, we spent two years investigating you, interviewed a dozen witnesses, found you in flagrant violation of federal law, threatened you with all manner of legal mayhem, sued you with great fanfare, and now – oh, never mind. Have a nice day!”
Of course, we all know what really happened here. The previous Administration took seriously its role to protect conscience rights. But the Biden Administration is so beholden to its extreme “abortion-is-awesome!” wing that they can’t even bring themselves to recognize that conscience rights exist when it comes to abortion. Remember when the Department of Justice, under Bill Barr, was being daily lambasted for allowing itself to be “politicized?” That was, what, about six months ago? Yet here we have a Department of Justice willing to completely abandon a lawsuit that it filed only eight months ago (!) without getting any concession whatsoever from the party it sued, and for no other reason than that there’s a new name at the top of the Department’s letterhead? “Politicized” much?
This perverse nature of what the Biden Administration has done here goes beyond the cynical politicization of what are supposed to be independent federal agencies (DOJ and HHS). In a July 30, 2021, letter to the ACLJ sent by the Acting Director and Principal Deputy of the HHS Office for Civil Rights, the Department explains that it is withdrawing the Notice of Violation previously issued to UVMMC (thus undermining the basis of the DOJ lawsuit) because recent court decisions regarding the proper interpretation of the Church Amendments have called into question the legal basis for HHS’s issuance of the Notice.
It’s true that in two lawsuits filed against HHS by several states currently governed by pro-abortion regimes along with – who else? – Planned Parenthood, the lower court judges bought Planned Parenthood’s and Andrew Cuomo’s argument that the Church Amendments can’t possibly mean what the words of those Amendments say. That is, whereas the Notice of Violation correctly noted that the words of the Church Amendments plainly and unambiguously say that “no person shall be discriminated against because of his or her conscientious refusal to participate in abortions,” the nation’s largest abortion lobby and its political allies in numerous state houses say, “Well, maybe they can be – it all depends.”
HHS in those cases ably and vigorously argued that the Congress that overwhelmingly passed the Church Amendments in 1973 (a Congress that included, by the way, a young Senator named Joe Biden) understood what words mean. That the pro-abortion side managed to persuade two federal courts that the correctness of their position is unfortunate but should never have been the end of the story. A decision by a lower federal court judge is of limited precedential effect. It isn’t binding on the judges of the Court of Appeals. It isn’t binding on the other lower federal court judges sitting in the same district as the judge who rendered it. It isn’t even binding on the judge who rendered it. In practically every case of significant public interest, such as these two cases involving the HHS’s interpretation of the Church Amendments, the lawyers and litigants know that the lower court decision is merely the end of Round One. That’s why, after those decisions were rendered, HHS did what every party in litigation does when it thinks the lower court judge has made an erroneous decision: It appealed to the Circuit Courts of Appeals.
But what did HHS do while waiting to have its well-reasoned position on the applicability of Church Amendments vindicated by the Courts of Appeals? On the eve of oral argument of one of the appeals, it asked both Courts to “hold in abeyance” its own appeals. The same HHS suddenly found itself powerless to muster the intellectual heft and moral resolve to come up with anything to say to defend the position it took as recently as eight months ago.
And now – having asked the Courts of Appeals to not decide the appeals HHS itself filed – it cites the two lower court decisions as the basis for abandoning both the Notice of Violation and the lawsuit it filed against UVMMC. Dizzying treachery!
The upshot of this remarkable turn of events is that pro-life health care workers need to know that this Administration has thrown them to the wolves. The Biden Administration has sent a message. “We don’t care if you have a sincere religious belief about abortion (like the President says he does) that forbids you killing babies. We don’t care if there’s been a law on the books for half a century that’s supposed to prevent health care employers from forcing you to get involved in abortions. We don’t care if our own Department of Justice argued eight months ago that that law fully protected you. We’ve got a powerful and wealthy ‘abortion-is-awesome!’ lobby that we need to pander to; and pander we shall, no matter the cost to you.”
All this should make us realize that, when it comes to the life issue, we have never seen an Administration as extreme as this one. There will be little point in bringing matters to the HHS’s now toothless and essentially useless Conscience and Religious Freedom Division. (Our Vermont case, technically, remains a “live” case with HHS, along with two others that are pending with HHS, although, realistically, we can expect no relief from that quarter at this point.)
But all is not lost. At the ACLJ, we have been representing pro-life health care workers for over two decades. And while the Church Amendment has been of assistance in some of those cases, it has never been our only or even our primary argument. A patchwork of state laws exists that protects the rights of health care professionals to opt out of abortion procedures. At the federal level, even after this betrayal by the Biden Administration, the Civil Rights Act of 1964, Title VII, with its protection against discrimination based on religion, remains an available avenue of defense.
The ACLJ’s message to pro-life health care workers remains what it has been since our founding: We stand with you. We are ready and able to support you, to defend you, to vindicate your right to practice medicine and assist in medical care without compromising your deeply held beliefs about the sanctity of all human life. Despite this recent setback, we stand ready to help. Now more than ever.
LifeNews Note: Francis J. Manion is Senior Counsel with the ACLJ who emphasizes First Amendment law and pro-life legal matters before state and federal courts.
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Author: Francis Manon
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