Bench Memos

Law & the Courts

Protecting Our Healers: Courts Must Allow the Federal Government to Enforce Federal Law

(Pixabay)

People who enter the health-care profession and become doctors and nurses usually do so out of a heart-felt motivation to bring healing to sick and hurting people. Many take an oath to care for their patients and to “do no harm.” Some also are motivated by personal religious faith and profess a calling to care for the poorest and most vulnerable among us.

For doctors and nurses who believe in the sanctity of life, deliberately destroying a developing human life by performing an abortion is an unthinkable and unconscionable act — an act that runs directly counter to the very beliefs that called them into healthcare. There are some medical professionals who personally support pro-choice policies but who also do not wish to participate in an abortion. And there are many patients who, while they may themselves be politically pro-choice, are comforted to know they are being cared for by a pro-life physician.

Since our earliest days, America has been a place of shelter for people with moral or religious objections. Our nation has protected the conscientious objector in a manner unprecedented by any other historical government. For example, we have protected Quakers from bearing arms and prison officials from administering lethal injections. Unfortunately, some abortion advocates would rather discard that heritage and force doctors and nurses to either perform abortions or exit the medical profession entirely. Such a position is untenable. It is un-American and it is harmful for the patients these compassionate doctors and nurses are serving who would be left without their care.

That is why, as Members of Congress, we crafted laws to protect them. The Coats-Snowe Amendment was passed to ensure that doctors, nurses, and medical students would not be forced to provide or participate in abortions. The Weldon Amendment was passed to prohibit recipients of federal funding from discriminating against a medical professional that does not provide, pay for, cover, or refer for abortions.

It is incredible that such laws are necessary, but abortion advocates were making it increasingly difficult for pro-life providers to continue serving in the medical field. For example, the Coats-Snowe Amendment was passed after a national accrediting agency made training in elective abortion procedures mandatory for medical schools.

The provisions we drafted, along with dozens of others designed to protect conscience in the medical field, are now enshrined in federal law. Federal statutes protecting medical conscience have been on the books for decades. Many passed with bipartisan support. Why? Because while we may take different views on questions like physician-assisted suicide and abortion, it should be easy to agree that forcing someone who has dedicated her career to saving lives to perform a procedure that is, in his or her sincere professional judgment, lethal to a human life is wrong.

In order for these protections to be effective, they must be enforceable. Yet federal courts (including the Second Circuit, which in 2010 heard a case from a New York City nurse who was coerced into participating in an abortion) have held that doctors and nurses cannot invoke these laws on their own. Instead, courts have held that the federal government alone can enforce them.

In response the U.S. Department of Health and Human Services recently issued a regulation directing the Office of Civil Rights at HHS to enforce conscience rights within the parameters of existing federal law. We were both very pleased with this new regulation, and we both feel that this more accurately reflects the intent of Congress. Unfortunately, a federal district court invalidated the regulation, misinterpreting congressional intent and depriving the medical community of these important protections.

We submitted an amicus brief to the Second Circuit detailing the legislative history behind the provisions we led to passage. These laws provide broad protections for providers with personal objections to performing or assisting in the performance of abortions. Our brief details why the HHS regulation enforcing these provisions is authorized by the text and intent of the legislation we pioneered.

The Second Circuit now has an opportunity to prove it meant what it said when it ruled that HHS is responsible for enforcing these conscience protections. In New York v. HHS, the court must ensure that the government can enforce these conscience protections as they were intended and as they are written.

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