Compulsory 'choice'

FOR 10 YEARS, NO ONE SEEMED TO mind that Janice Turner was a pro-life nurse. Her job at the Women's Clinic in Marion County, Ore., included reaching out to women undergoing high-risk pregnancies, making house calls to expectant teenagers and single moms, and counseling clients on their legal options, including abortion and "emergency contraception."

But Ms. Turner, a Christian who believes life begins at conception, refused to refer clients for abortion, or to dispense "morning-after pills"-the so-called "contraceptive" that actually snuffs out budding life. Although Ms. Turner's supervisor didn't agree with her abortion views, she respected Ms. Turner's right to follow her conscience.

But then a new supervisor came along. And in July 2001, after a decade on the job, Ms. Turner was fired. That's because, according to a federal suit Ms. Turner filed with the help of the Rutherford Institute, the new supervisor believed Ms. Turner's religious objection to abortion made her "not a complete nurse."

Ms. Turner is one of an increasingly vocal number of health-care professionals being forced to choose between career and conscience. As the doctrine of "choice" has failed to sustain long-term expansion of abortion, Roe enthusiasts have appealed to courts and regulators to force health-care workers, public and private medical facilities, and even insurers to participate in abortions.

"Abortion advocates want to make health-care workers' rights of conscience subordinate to the public 'right' to abortion," said Brigham Young University law professor Lynn Wardle, an expert on medical right-of-conscience issues. "It is an irony that this all developed out of the rhetoric of private choice."

Title VII of the 1964 Civil Rights Act requires employers to generally "accommodate" the religious beliefs of workers. Only one state, Illinois, specifically protects the right of all health-care industry players to refuse to participate in, or fund, any medical procedure on religious or moral grounds. Forty-five states permit some providers and institutions to abstain from participation in abortion services only. But many state laws exclude certain providers, such as abortion-objecting pharmacists; only Arkansas and South Dakota protect their right not to dispense abortifacients such as the "morning-after pill." Four states-Alabama, Mississippi, New Hampshire, and Vermont-provide no conscience protection for any health-care worker or institution.

Meanwhile, a 30-year-old federal conscience-protection law may provide the best sanctuary for public health workers like Janice Turner. The Church Amendment to the Public Health Service Extension Act of 1973, passed six months after the Supreme Court Roe vs. Wade decision, created a federal law exempting publicly funded institutions or individuals with religious or moral objections from performing abortions and sterilizations. Rutherford Institute attorneys cited the Church Amendment in their pleadings against the Marion County clinic that fired Ms. Turner. Although attorneys for the county still contend their clients did not violate Ms. Turner's rights of conscience, they now want to settle out of court.

Frank Manion, a Kentucky-based attorney with the pro-life American Center for Law and Justice (ACLJ), says the number of health-care professionals contacting his organization about abortion-related right-of-conscience issues has grown over the past three years from about one call every two months to at least a call per week. He said the ACLJ hears most frequently from nurses, as more nurses who are asked to dispense morning-after pills realize that the drug doesn't prevent pregnancy, but ends it.

"We do hear from some doctors, but they are typically in the minority because they usually are in a position to set their own terms of employment," Mr. Manion said. "Nurses and other health-care workers with less clout are typically not in that position."

Nurse Michelle Diaz wasn't. When in 1999 Ms. Diaz, 28, took a job at a public health clinic in Riverside, Calif., she didn't know the morning-after pill was already a lightning rod there. She also didn't know the medication isn't a contraceptive, but an abortifacient that prevents a developing embryo from implanting in the uterine wall. Ms. Diaz, a Christian who objects to abortion, had been working at the clinic for only a few weeks when a manager asked her to dispense the drug to a patient: "It wasn't until many weeks afterward that I realized what I had been asked to do-and what I clearly wasn't going to be doing in the future."

It turned out that the other four nurses with whom Ms. Diaz worked had already refused on religious grounds to hand out morning-after pills. When clinic managers learned that their newest hire, Ms. Diaz, wouldn't dispense them either, a temper-flaring, door-slamming war erupted between the nurses and management. Clinic managers tried to close the issue by writing position descriptions for the objecting nurses that required them to dispense emergency contraception.

Four nurses and a nurse manager immediately resigned. But Ms. Diaz, who was four months pregnant and responsible for earning half her family's income, instead waited for a promised transfer to a different position-a transfer that never came. Then in June 1999, a reporter called Ms. Diaz to ask about the clinic fracas, and quoted her in a weekend Riverside Press-Enterprise story. The following week, Ms. Diaz was fired.

With the help of the ACLJ, she filed a civil suit against Riverside County. Judges normally adjudicate such cases, but Ms. Diaz requested and was granted a jury trial. In May 2002, an eight-person jury concluded that the county had abridged her rights of free speech and religious freedom, and awarded her $47,000 in back pay and damages.

The verdict taught ACLJ attorney Frank Manion a lesson. "When you can get past judges to the regular people, you find not only that they are more pro-life than we've been led to believe, but that they also understand that someone like Michelle has a fundamental right to have her conscience respected."

In their attempt to elevate the "right" to kill unborn children over health-care providers' rights of conscience, groups such as the National Organization for Women and the National Abortion Rights Action League play a rhetorical shell game. "Abortion" becomes "women's health"; objectors to abortion become "religious fanatics" who are trampling on women's "civil rights," and "denying women access to comprehensive health care." The linguistic bait-and-switch has been particularly effective in forcing health-care institutions to violate the moral principles upon which they were founded.

Brigham Young University's Lynn Wardle cited what he calls the abortion lobby's "containment policy" toward Roman Catholic hospitals and other health-care institutions with a pro-life ethic. Here's how it works: When such organizations bid to take over failing hospitals and medical facilities, pro-abortion activists furiously rattle cages at regulatory agencies charged with approving and licensing such takeovers. Their argument is that the expansion of zero-abortion medical facilities will reduce women's "access to comprehensive health care."

The tactic often works. In Connecticut, for example, officials denied a "certificate of need" to a proposed outpatient surgical center because it refused to perform abortions. In St. Petersburg, officials forced a private Florida hospital to bow out of a nonprofit consortium because the consortium opposed abortion.

Sometimes such fights spill into the courts, where judges often narrowly interpret conscience laws, Mr. Wardle said. The Alaska Supreme Court, for instance, forced the Valley Hospital Association (VHA), a nonsectarian, private organization located in Alaska's Matanuska-Susitna Valley, to provide surgical abortions even though the group had expressed moral objections to the procedure. Unbidden-and perhaps as a message to Roman Catholic hospitals operating in the area-the judge in the case wrote in his ruling that if VHA had been a religious organization, he would have ruled the same way.

About one in five state conscience laws that protect individuals excludes institutions, according to Mr. Wardle, creating a legal end-around that he calls "an indirect way of denying the conscience and morality of the individuals whose choices the entities were created to effectuate."

In response to the assault on health-care freedom of conscience, the ethics commission of the 15,000-member Christian Medical and Dental Association (CMDA) has drafted a right-of-conscience statement. Though the statement has not yet been formally adopted, its basic tenets acknowledge the conscience rights of patients, providers, and institutions, and also places all health-care decisions in proper biblical perspective: "Christian dentists and physicians in our society give dual service to a Holy God and the humanity He created and sustains ... ," the proposed statement reads. "The Christian caregiver's conscience should be informed by the facts and reasons provided by science, but it should be governed by the facts and reasons of God's revelation. For the Christian, obedience to conscience is obligatory."

CMDA's statement also addresses the right-of-conscience challenges faced by medical schools. While standard OB-GYN instruction includes training in emptying the uterus of miscarried pregnancies-essentially the same procedures as aborting live babies-abortion backers charge that women's "access" to abortion is declining as fewer medical schools teach abortion per se. In response, health-care officials in New York City last year made abortion training mandatory for OB-GYN residents in the city's public hospital system. Although the requirement includes a conscience clause, Mr. Manion said pro-life residents there ought to beware of "subtle discrimination. When a city goes out of its way to announce that they're making abortion training mandatory, I would be very concerned if I were a pro-life resident there."

Meanwhile, pro-life lawmakers in Congress are fighting back. New federal legislation, the Abortion Non-Discrimination Act (ANDA), would prevent the federal government from refusing to fund individuals and institutions based on their refusal to participate in abortions. The House passed the measure last fall, 229-189. The Senate will take up ANDA this year, but even with the GOP in control of the chamber, pro-life activists say the bill faces a tough partisan fight.