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festation of attitude by such person with respect to abortion or sterilization if that health care institution is not operated exclusively for the purpose of performing abortions or sterilizations." The California Code: Health and Safety $ 25955 states that "No ... employee or person with staff privileges in a hospital, facility or clinic shall be subject to any penalty or discipline by reason of his refusal to participate in an abortion." It then goes on to say: "No such employee of a hospital, facility, or clinic which does not permit the performance of abortions, or person with staff privileges therein, shall be subject to any penalty or discipline on account of such person's participation in the performance of an abortion in other than such hospital, facility or clinic." Likewise, Michigan Comprehensive Laws, $ 331.553, sec. 5, provides that “A hospital, clinic, institution, teaching institution, or other medical facility which elects to refuse to allow abortions to be performed on its premises shall not deny staff privileges or employment to a person (or discriminate against its staff members or other employees] for the sole reason that that person previously participated in, or expressed a willingness to participate in a termination of pregnancy." Those sorts of provisions permit the exercise of both institutional conscience and individual conscience either way.
2. Many of the statutes extend an “institution" conscience clause both to public hospitals, medical and nursing schools and to private ones, and to non-sectarian private hospitals, medical and nursing schools no less than those having denominational religious sponsorship. The Ohio Revised Code $ 4731.91 in parallel paragraphs expressly provides first that “No private hospital, private hospital director or governing board of a private hospital is required to permit an abortion" and “No public hospital, public hospital director or governing board of a public hospital is required to permit an abortion.” Other state legislation impliedly do the same by the use of the indefinite article or other expressions encompassing all “entities.” Thus, Michigan § 331.551, sec. 1: "A hospital, clinic, institution or other medical facility shall not be required .." (italics added); Tennessee $ 39–304: “No hospital shall be required to permit abortions to be performed therein” (italics added); Florida $ 458.22(5): "Nothing in this section shall require any hospital or any person to participate in the termination of a pregnancy (italics added). Only California Code : Health and Safety 8 25955 (C) limits the “institutional" conscience clause and the protection of the hospital administrators and board members to the sectarian religious among private "entities." "Nothing in this chapter shall require a nonprofit hospital or other facility or clinic which is organized or operated by a religious corporation or other religious organization . . .," that paragraph reads.
Finally 3, the grounds for objection to performing an abortion or for conscientious willingness to do so, on the part of individuals or institutions, are described as “professional, ethical, moral or religious grounds" (Michigan Comprehensive Laws $ 331.552, sec. 2), “moral, religious or professional grounds" (Kentucky $ 311.800, sec. 11), or in the alternative the word "professional” is omitted and we read “moral, ethical or religious basis” [California Code : Health and Safety § 25955 (a) and (b)] or “moral or religious grounds” [Florida Statutes § 458.22 (5); Massachusetts Code, Chap. 112, § 121; General Laws of Rhode Island § 23–16–10.1]; or simply "contrary to the conscience or religious beliefs of any person” [Consolidated Laws of New York; Civil Rights Law $ 79-i(1)).
Before trying to show that we are entering-irreversibly, I believe into a situation altogether different from that contemplated by these statutes, let me briefly comment on the significance of some of the terms used in the legislation and on the protections intended (and needed). First, in our law there is no distinction to be drawn between religious reasons and “ethical, moral" reasons for conscientious objections. In United States v. Seegers in the matter of conscientious objection to participation in war, Mr. Justice Clark for the Court held that the test determining whether a belief or conviction is "religious" was "whether a given belief that is sincere and meaningful occupies a place in the life of the possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption." He echoed the words of Judge Irving R. Kaufman in the court below : 10 In today's "skeptical generation ... the stern and moral voice of conscience occupies the hallowed place in the hearts and minds of men
380 U.S. 163 (1965).
which was traditionally reserved for the commandments of God." Therefore, "ethical, moral or religious reasons" have the same force as grounds for objection to participation in abortion procedures protected by the statutes we have reviewed.
That means, secondly, that if we are to enact "institutional” conscience clauses they should not be limited to "entities” “organized or operated by a religious corporation or other religious organization” [California Code: Health and Safety, $ 25955(c)]. The Federal Code and the States ought not to go the way of California. Today, when the Chase National Bank is a "corporate citizen" and many of us, especially youth, are concerned that there be greater “corporate responsibility” in the matter of investments in South Africa, for example, we ought to be just as concerned about the corporate responsibility of private non-profit hospitals. A member of the board of directors or the administrator of a private "entity” have their consciences, too; and those persons ought equally to be protected from “the enforcement of morals” as any person connected with, say, a Catholic, Jewish or Lutheran hospital or service. ColumbiaPresbyterian has chosen to avail itself of the even-handiness stated or implied in these codes. Upon both alike is cast the burden, then, of insuring liberty of individual conscience contrary to one or the other institutional conscience. We may have to strike a social compromise and require public hospitals to make provision for abortion service. But whatever our personal opinions on the morality of abortion may be, we should not as a nation choose a course of action or legislation by which sectarian hospitals or services become the Amish of future Ob-Gyn practice; or the consciences of hospital policy-makers, administrators, physicians and nurses be forced to become the "animated tools" of patient desires or Ob-Gyn practice everywhere else be totally transformed by the absence of effective institutional conscience clauses.
Thirdly, an ethical or moral reason for refusal cannot be separate from the professional judgments of medical personnel, no more than ethical objection can be distinguished from religious objection. Physicians and nurses make medical-moral judgments, not simply converging or diverging medical and moral judgments that are independent of one another. That follows from the special responsibility that flows from possessing special knowledge. While good medicine may not always be good morals, this is apt to be the case or be believed to be the case—either way-in the matter of abortion. We should, therefore, approve the wording of 8 331.552, sec. 2 of the Michigan Comp. Laws, which states that any physician or any nurse, medical student, student nurse or other employee of a medical facility where abortion is performed “who states an objection to abortion on professional, ethical, moral, or religious grounds may not be required to participate” (italics added), which refusal shall not result in "any disciplinary or discriminatory action ... against the person.” Kentucky Senate Bill 259 (1974), creating § 311.800 of the Kentucky Revised Statutes, used similar language in § 11(1) and (2c).
Dr. Nathanson wrote, in the article cited above, that “there are seldom any purely medical indications for abortion.” The implication is that there are rare cases in which abortion is medically indicated. A physician who believes that is making what I call a medical-moral judgment; he might say it is simply his professional reason for refusing to do most of the sorts of abortions performed today. Is not that professional conscience to be protected? Does it not fall within the area of liberties that was allowed when Justice Blackmun wrote that during the first trimester "the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician”? If not, then, physicians and nurses already established in Ob-Gyn practice may have to hide behind appeals to refusal on moral grounds, much as young men who held moral objection to participation in war were often forced to hide behind appeals to "religious" objections.
Moreover, the medical or nursing student while still in training is in a much more profound dilemma of conscience. Student doctors and nurses may be forced into learning or training procedures which they regard as in themselves violations of their professional and moral integrity, if to graduate they must participate in abortions for which they believe there are no medical indications or moral justification.
Fourth and finally, individual conscience clauses are going to prove worthless unless (a) institutional conscience clauses are effective. Individual conscience needs Lebensraum, even though we Americans are inveterate individualists who do not think so.
One may admire the “personalistic" expression of contemporary individualism that governs Catholic Hospital Ethics: The Report of the Commission on Ethical and Religious Directives for Catholic Hospitals of the Catholic Theological Society of America." The Commission acknowledged the "conscience demands" of the "corporate moral person,” the Catholic hospital. Reacting overmuch to a Catholic hospital remaining an "ecclesiastical moral person” only, with vertical responsibilities solely within the body of the church, the Commission recognized that the Catholic hospital is "no longer a religious island,” “this health facility is becoming a quasi-public, pluralistic institution with multiple social and moral accountability.” On these grounds, it called for a "model of 'horizontal accountability'” in understanding "the Catholic hospital-as-moralperson.”.
So far, so good, at the level of generality-though even at that level I had supposed the church knew more about the meaning of horizontal accountability than pluralistic liberty within its walls.
At the level of practical application, “the critical question is whether the exercise of religious liberty should be limited also by the fact of administering or seeking treatment in a Catholic hospital. From the hospital's perspective the issue is whether it can allow a course of action dictated by the conscience of the patient, or of both the patient and the physician, both contrary to the professed institutional code (or institutional conscience') of the hospital. If the hospital invariably insists on the execution of its moral norms, it will presumably be acting according to its own moral standards, but it may also be disproportionately infringing on the rights of other people in our society." Then the Commission gives a "for instance": "It may be necessary to permit a procedure in a Catholic hospital which is the community's only health facility, while the same action would not have to be admitted in a Catholic hospital located in a large metropolitan area where other facilities are available."
That seems a strange understanding of “the health care apostolate" or of how to “minister, in the name of Christ, to the needs of today's mankind." The theologians would turn Catholic hospitals into public entities and abolish the institutional conscience clause even before the States or our courts do. At the same time, they manufacture problems of Lebensraum for individual Christian professional conscience on the part of interns and nurses practicing even within Catholic hospitals.
On the first point, the U.S. Code and some of the State laws protecting institutional conscience, while requiring non-discrimination either way against individuals, are a better way to adjudicate conflicts of conscience in a pluralistic society. Michigan Comp. Laws 8 331.555, sec. 5 prohibits any entity that refuses to allow abortions to be performed on its premises from denying staff privileges or employment to any person "solely for the reason that that person previously participated in, or expresed a willingness to participate in a termination of pregnancy.” The United States Code is verbally even-handed, prohibiting discrimination, regardless of institutional policy, against persons who either performed or assisted in the performance of an abortion or because he refused to perform or assist in such procedure.
The California Code : Health and Safety 8 2595(a) legislates apparently adequate protection of individual conscience, but it then goes on to state that “No provision of this chapter prohibits any hospital, facility, or clinic which permits the performance of abortion from inquiring whether an employee or prospective employee would advance a moral, ethical or religious basis for refusal to participate in an abortion before hiring or assigning such a person ..." Herein, along with California's limitation of the institutional conscience clause to sectarian entities, we see the wave of the future that is bound to overwhelm the Ob-Gyn profession and render it of one mind.
Realistically, it is quite impossible to understand the ease with which the Commission of Catholic Theologians recommended giving up the Lebensraum that remains for professional medical conscience against our current abortion practice. It will be small consolation for Christian interns and nurses to be reminded that they are cooperating not with acts of abortion but with persons who do them. If room for institutional conscience is not preserved, these will be jesuitical excuses—like saying go ahead if you have an aged grandmother or five children to support and need the job, or if you do not "formally” consent to the rightfulness of your part of the procedure.
11 Linacre Quarterly, Vol. 39, No. 4 (November 1972).
Individual conscience clauses are going to prove worthless unless (b) effective means are found to enforce them at the point of admission to medical or nursing school, at all points during the required training, on the matter of qualifications for graduation, and at the point of admission to internship or employment by hospitals. Without effective enforcement, indeed without means to ferret out discrimination, the conscience clauses are nugatory-like the right to travel if you have neither employment or money, or the prohibition of discrimination for reason of sex or race without someone watching to insure equal opportunity.
To illustrate, consider the following examples. The first two are a matter of record in testimony in a court of law. The third I obtained directly from the young physician in question, whom I know and trust. The remaining examples I vouch for because I know and trust the proxy who communicated with me.
(1) If the X hospital were forced, that is, the Board of Trustees were forced by law to carry out abortion, they would have to decide whether to operate as a hospital or give the hospital up and sell it to somebody else. Some of the members of the Board of Trustees have spoken to me about that particular problem....12
(2) I might give you just a couple of cases. This one happened in one of the mid-western states . . . a hospital whose Board of Trustees had o.k.'d abortions. Here's a lady, a divorced or widowed nurse, several small children to support, chief nurse in the operating room, excellent track record, apparently earning a reasonable salary and needed that to care for her family. They began to do abortions. She refused to be part of what she called killing babies. There were other nurses in the theater; she didn't have to be involved. Two weeks after the abortions started . suddenly a great deal of fault was found with what had previously been exemplary performance in her job, she was transferred to night duty on the psych ward. I think it speaks for itself. There was no way that this woman could retaliate.
Let me just give you one more example. This one lad who had 3.9 out of a possible 4.0 average in premed at Notre Dame University. Now Notre Dame last year was rated number eight among all the universities in terms of excellence. And high among its departments is its premed. So this person, by that standard, an exceptional guy, and he was a very well-balanced young man. He had applied to a variety of medical schools and he told us this story. I am free to tell you the university he came from because it might give you a clue as to his opposition to abortion. I won't tell you which of the ivy league schools he went to for his interviews. He said, “In 30 minutes the person who interviewed me asked me seven different times, in one way or another, my opinion on abortion; would I participate and so forth.” He said, “When I left that interview my knees were jelly.” He said, “No way am I going to get into that school unless I would have perjured myself repeatedly.” Now . [there is) just no way you could say that that boy was rejected from the school because of his pro-life proclivities. They would have found another reason, as you know.18
(3) The Supreme Court decision in 1973 came at a point in my residency training in obstetrics and gynecology where I was two and one-half years into a three and one-half year program. For the first six months following that decision I worked either directly in the — Clinic itself or at X Hospital. However, for the last six months of my training beginning in July 1973 I was asked to complete my training at Y Hospital where abortions were now being performed on demand. For all intents and purposes, I could have finished my training at X Hospital in where adequate gynecological training in gynecologic surgery was available. However I was told that I would have to complete my training at Y Hospital under the senior gynecologic surgeons who were present only at the Y Hospital. Only later did I find out that other residents have completed their training at X Hospital under the junior gynecologic surgeons. At this point, I had only six months remaining in my training. However, I decided that I could not work in a hospital that did abortions. I was assured by the faculty that I would not have to either participate or assist in the participation of abortions. However, knowing how residency staffs operate, it is not unusual for a resident to take a vacation or become ill or have to take a leave of absence for a brief period of time in which I perhaps might have to participate even if it were just
u Testimony of Dr. Herringer, Wolfe v. Schroering, 388 F. Supp. 631 (1974). u Testimony of Dr. Wilke, Wolfe v. Schroering, 388 F. Supp. 631 (1974).
pre-operatively in working up such patients. However, my conscientious objection went much deeper than that and it involved the essential support of an institution which was involved in these kinds of killing operations. Since the Clinic did not comply with my request to finish the residency at X Hospital, I felt forced to resign my position there. Incidentally, I am also a conscientious objector to the service in the Armed Forces on similar reasons. My in-depth reasons in regard to these conscientious objections, certainly go much deeper than that and involve my view of Christianity and what that means to my involvement in life.
(4) A nurse anesthetist in New York City. This young nurse was still receiving her training in anesthesiology. When abortion became law in New York, she voiced her opposition and refused to give anesthesia to abortion patients. As a result, she was not assigned to any patients . . . without experience she would not be permitted to graduate. She went to her superior and requested patients other than abortion patients. The superior said, “You want work, we'll give you work." She was then scheduled to work twelve hours a day, every day of the week. She worked this schedule for three months without a day off. Finally she capitulated and began to give anesthesia to abortion patients. Her last case was to assist with a hysterotomy abortion. She was ordered to give a dose of morphine to the mother that was known to be lethal to the baby she carried. She refused to do is, but she did administer the anesthesia. Upon the delivery of a four pound baby, dead from the overdose, she left the operating room vomiting. Since that time she has suffered from insomnia and is having great difficulty in functioning as a professional nurse.
(5) A young student nurse at a hospital in Cincinnati. At first she could see no harm in abortion, but as her knowledge grew, her opinion changed. She made the grave error of sending a letter describing abortion procedures and voicing her opposition to the Cincinnati Enquirer. The paper published the letter. Within two weeks of its publication she was called before the director of nurses, and the chief of obstetrics and gynecology. She was severely reprimanded and debased. She was called unfeeling and unwomanly. Finally she was expelled for academic incompetency (strangely enough, she was carrying a B average). Fortunately she was accepted by a Catholic hospital in Chicago and graduated with honor. However, it cost her parents $2,000 and the girl a year of time and a year's salary which would not have been expended if she had graduated from her original school.
(6) A hospital intake worker. She was required to interview incoming patients, many of whom were seeking abortions. She also had to handle the bottles that contained the fetuses, although this task was taken from her when she complained. She had to talk with the girls who were getting abortions at various times while they were on her floor. She had to take orders from the doctors who were performing the abortions. Finally, she had to fill out the final forms for release and put down information about the abortion.
She complained time and again about all this involvement. She asked the hospital to switch her. They could have, and they did have other positions in the hospital. Although they made various promises, they never switched her to a position where she would not have been involved with abortions.
Finally she quit and applied for Unemployment Compensation. Meanwhile she was looking for another job but she was having a hard time because of the reason why she left her first employment. The State Administration for Unemployment granted her the compensation, ruling initially that she had quit with justification. The hospital then appealed the case. Attorney X represented the woman and subpoenaed in all sorts of people and records from the hospital. The latter finally decided that it would be best not to fight and acquiesced to the decision of the Unemployment bureau.
(7) The head nurse on a gynecological ward for over 10 years. Since the abortion decision of 1973, large numbers of saline abortions have been performed in her hospital. The saline was injected in the operating room and the patients were then transferred to her ward where the nurses delivered the dead fetuses in the room. She recounted many horrifying situations which included babies born alive, for whom they had no facilities whatsoever in the hospital. She personally witnessed one physician who happened to be present at the birth of a live born baby, who subsequently drowned the baby in a bucket of formalin. The buckets of formalin were kept in rooms of aborting mothers because of the macerated condition of most of the aborted fetuses. After this incident, however, she personally removed all buckets of formalin and required that those physicians