Religion & Law

Today BYU is hosting a conference on rights of conscience in health care, and I'll try to post a bit as the presentations occur.  (I won't go so far as to call it "live blogging," but it might be "somewhat sporadic but pretty quick blogging.")  Washington & Lee law prof Robin Wilson just presented a fascinating overview of the history of conscience rights in health care, noting that civil rights litigation, rather than legislation, does a poor job providing guidance as to how a new right affects third parties.  (Another problem of the Roe regime.)  She talked about the 2009 case of Catherina Cenzon-DeCarlo, a New York nurse who sued Mount Sinai Hospital for forcing her to assist in a second-term aborton.  She sued under the Church Amendment, which prohibits federally funded organizations from discriminating against health care professionals who refuse to participate in abortion because of their religious beliefs.  Her suit was dismissed because the Amendment does not provide a private right of action.  The problem, though, is that it is unclear how vigilant HHS is being about violations of the Amendment.  Is HHS required to sanction a hospital for this sort of discrimination?  If so, it's not entirely clear how a person in Cenzon-DeCarlo's position can force the agency to meet its obligation.  If HHS is reluctant to use the funding sanctions availabe, it might be time for Congress to consider creating a private right of action.