‘An assault on those who are pro-life’: Legal group responds to DOJ dropping conscience complaint

Washington D.C., Aug 5, 2021 / 11:15 am (CNA).

Members of Congress and a conservative legal group this week criticized the Justice Department for dropping its conscience rights lawsuit against a Vermont hospital.

In December 2020, the Justice Department sued the University of Vermont Medical Center after a nurse there was allegedly coerced into helping with an abortion in 2017, against her stated conscientious objection to doing so. The agency alleged a “pattern” at the hospital of other health care workers being discriminated against for refusing to perform abortions out of religious or moral objections.

On July 30, 2021, however, the agency quietly filed a notice of voluntary dismissal in a federal district court in the case of United States of America v. University of Vermont Medical Center.

Long before the initial lawsuit, the nurse at the center of the case had filed a conscience complaint with the Department of Health and Human Services (HHS) in May 2018. The agency’s civil rights office then ruled in August 2019 that the hospital had violated federal conscience laws, and later referred the case to the Justice Department for enforcement.

An HHS spokesperson told CNA in a statement on Thursday that the agency withdrew its initial referral of the case to the Justice Department for enforcement, following “a detailed evaluation of the underlying legal theory” behind the original referral. The agency further requested that the Justice Department dismiss the case, and also withdrew its own notice of violation issued to the hospital.

“It’s plainly political in nature,” said Matthew Clark, senior counsel for digital advocacy at the American Center for Law and Justice (ACLJ), in an interview with CNA on Thursday. The ACLJ had represented the nurse at the center of the case who had alleged she was coerced into helping with an abortion.

“This has now become an assault on those who are pro-life,” Clark said.

The HHS civil rights office brought the case to the public in August 2019, when it announced that its investigation found several nurses at the University of Vermont Medical Center reported being forced to participate in abortions against their moral objections.

The nurse who brought the initial complaint to the agency said that in 2017, she had been told she would be helping with a miscarriage. When she arrived at the location of the procedure, the attending doctor told her “Don’t hate me,” before saying that she would be helping with an abortion. When the nurse stated her moral objection to participating in the procedure, and asked to be replaced, her request was denied on the spot, and she assisted with the abortion.

“It was a surprise. The nurse was on a list of people who had a conscience objection to abortion, so they [the hospital] knew, the head doctor knew, everybody knew, and could have easily switched somebody out,” Clark told CNA.

At the hospital, staffers who objected to participating in abortions for religious or moral reasons would notify the hospital of their objection. The names of staffers with noted objections to procedures such as abortions were placed in public.

“This was very intentional, because they [the hospital] wanted to make a point,” Clark said.

Members of Congress also stated their disapproval this week at the motion to dismiss the lawsuit. Sen. Ben Sasse (R-Neb.) on Tuesday called the move “a shocking failure by the Department of Justice” and “a slap in the face to basic conscience rights.”

“The law protects health care providers from being forced to perform procedures they find morally objectionable,” he said.

Sen. Steve Daines (R-Mont.), chair of the Senate Pro-Life Caucus, said on Tuesday that the administration’s move to dismiss the lawsuit was “an egregious attack on healthcare providers’ right to follow their moral or religious beliefs.”

Both the HHS notice of violation and the Justice Department’s lawsuit alleged that the hospital had violated federal conscience laws – the Church Amendments.

The amendments prevent federally-funded employers from discriminating against doctors and health care workers who perform or refuse to perform abortions and sterilizations. Congress initially passed the Church Amendment in 1973 after the Supreme Court legalized abortion nationwide in its Roe v. Wade decision. Additional provisions were added to the policy in 1974 and 1979.

“Clearly, it was a discrimination,” Clark said of the nurse allegedly being told to participate in the abortion. “Your boss tells you ‘do x,’ and you say, ‘I have an objection to x, can I not do it?’ And they say ‘no, you have to do x.’ The natural implication of that is that there’s going to be something that follows.”

“This isn’t about abortion access,” he said of the incident. “This is actually about taking away the rights of pro-lifers. There was somebody else who could have stepped in, so this goes beyond being pro-abortion. This is anti-life.”

Roger Severino, who handled the complaint as head of the HHS civil rights office from 2017 to 2021, said it “was the most open and shut conscience case in over a decade,” in an Aug. 3 article for National Review.

“Without so much as a slap on the wrist, this was a clear favor to abortion special interests and a spit in the face of not only the victim in the case, but the many medical professionals who have suffered conscience violations through the years and will continue to suffer, but now with little hope of recourse from their government,” he wrote of the motion to dismiss the lawsuit.

At the time HHS issued its notice of violation to the hospital in 2019, Severino said that the agency ordered the hospital to produce documents and witnesses concerning the alleged forced participation in an abortion, but that the hospital did not comply.

He said his office’s investigation found that since at least the spring of 2017, several other staff members at the medical center had been assigned to participate in abortions despite their noted conscience-based objections.

The hospital was “not fully cooperative” with the HHS investigation, Severino said, and “contested” both the investigation and the allegations. “There was a coerced abortion, that we are convinced of,” he said in 2019.

On the day that Severino’s office issued the notice of violation in August 2019, a spokesperson for the University of Vermont Medical Center told CNA in a statement that it had “robust, formal protections that safeguard both our employees’ religious, ethical and cultural beliefs, and our patients’ rights to access safe and legal abortion.”

“We do not discriminate against any employees for exercising their rights to opt out of procedures to which they object. These procedures cover initiation and cessation of life support, organ transplant, sterilization, and termination of pregnancy,” the medical center said.

The medical center stated further that it had learned of the impending HHS notice of violation through the press. According to the spokesperson, the hospital had offered to discuss its policies with the HHS office in the nine months leading up to the notice of violation.

Once it issued the notice of violation, Severino’s office gave the medical center 30 days to begin working on a new policy to allow proper conscience exemptions for staff.

In December 2020, the Justice Department announced it would file a lawsuit against the medical center.

The medical center, meanwhile, called the enforcement action “an abrupt turnaround” by leadership at HHS and the civil rights office, and part of “an attack on reproductive care.” It said it had “strengthened” its opt-out policies for staffers since the 2019 notice of violation.

The medical center did admit that situations occurred where “employees’ religious or moral beliefs come into conflict with the hospital’s patient care obligations,” but noted that such situations were already “exceedingly rare.”

“It wasn’t that it should be ‘rare,’ it’s that it never should have happened,” Clark said on Thursday. The hospital “clearly did not prove to DOJ that they had made real strides to ensure this never happened,” he said.

In response to the 2020 lawsuit, the chairs of the U.S. bishops’ religious freedom and pro-life committees—Cardinal Timothy Dolan of New York and Archbishop Joseph Naumann of Kansas City, respectively—praised the action as one of multiple “concrete steps to enforce long-standing and fundamental civil rights laws.”