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.