The Church Amendment (42 U.S.C. §300a-7(c)) provides that no entity receiving federal funding may discriminate in the employment of any physician or health care personnel because he or she performed or refused to perform a lawful sterilization procedure or abortion.  An Operating Room Nurse filed suit against a New York hospital arguing that the hospital violated her rights under the “Church Amendment” because her job duties required her participation in performing late-term abortions.

The hospital had a written policy allowing employees to register conscientious objections to abortions and other procedures.  As part of the hospital’s hiring process the nurse confirmed her unwillingness to participate in abortions.  She nevertheless later claimed to have been compelled to participate in a late-term abortion.  When the nurse made an official complaint of the incident, she alleged that her supervisors attempted to coerce her to provide written confirmation of her willingness to assist in emergency abortions (even though the hospital’s objection policy lacked an “emergency” exception).

In July 2009, nurse sued the hospital in federal court, alleging violation of rights protected by the Church Amendment.  The District Court granted the hospital’s motion for summary judgment, dismissing the plaintiff’s claims on the ground that the Church Amendment did not create a private right of action. 

Dismissal was affirmed by the Second Circuit Court of Appeals, which held that a private right of action is inferred only when there is “explicit evidence of Congressional intent” to create a private right and a defined private remedy.  Here, the Second Circuit held, there is “no evidence that Congress intended to create a right of action.”  Accordingly, the plaintiff’s claim against the hospital was dismissed.

The lessons are clear for employers.  Written policies should define clearly proscriptions and obligations, as well as the protocol for reporting potential violations.  Moreover, policies should be implemented without exception. 

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Photo of Ana C. Shields Ana C. Shields

Ana Shields is a Principal in the Long Island, New York, office of Jackson Lewis P.C. Since joining Jackson Lewis in June 2005, she has practiced exclusively in employment law and has been involved in proceedings before federal and state courts, the American…

Ana Shields is a Principal in the Long Island, New York, office of Jackson Lewis P.C. Since joining Jackson Lewis in June 2005, she has practiced exclusively in employment law and has been involved in proceedings before federal and state courts, the American Arbitration Association and administrative agencies.

Ms. Shields has successfully prepared pleadings, motions, memoranda of law, position statements and legal opinions related to employment law issues such as employment discrimination, harassment, retaliation, whistle-blowing claims and restrictive covenants. Ms. Shields has advised clients on compliance with various state and federal laws affecting the workplace, including Title VII, the Equal Pay Act, Fair Labor Standards Act, Family and Medical Leave Act, Americans with Disabilities Act, Age Discrimination in Employment Act and New York State and City laws. In addition, she is a firm resource for Electronic Discovery. She has worked closely with clients through all phases of litigation including investigations, preparations for depositions, attending depositions and trials.

While attending law school, Ms. Shields was a published member of the New York International Law Review. She was the recipient of the 2003 American Bar Association/Bureau of National Affairs Award for Excellence in Labor and Employment Law. She was also awarded the CALI Award for Excellence in Employment Law, Advanced Labor Law, and Jurisprudence.

Prior to joining the firm, Ms. Shields was a commercial litigation associate at a firm in Long Island, New York.