The action against the UVM medical center is the third enforcement action taken in the 1 1/2 years since the Department of Health and Human Services created a conscience and religious freedom division within its civil rights office. It is the first that deals specifically with a health-care worker’s objection to participating in an abortion.
The nurse is represented by Francis Manion, senior counsel for the American Center for Law and Justice, a conservative organization that works on religious freedom issues and whose chief counsel, Jay Sekulow, is a personal attorney to President Trump.
In his daily podcast Wednesday, Sekulow announced the center had uncovered “coerced abortion at the University of Vermont.” He portrays HHS’s action as a victory, and urges donations to a fundraising campaign for the group.
In a conference call with reporters, Roger Severino, director of HHS’s civil rights office, said the office conducted an investigation “for many months” based on a May 2018 complaint that a nurse at the Burlington-based medical center, whom he declined to name, was asked to assist with the abortion. He said she had previously made clear she was not comfortable being involved with such procedures.
Severino said that the nurse, whose name is redacted from HHS documents released Wednesday, had helped in the past with dilation and curettage, in which tissue is scraped from the uterus for a variety of reasons, and believed that she was going to help with another one. But when she walked into the room, Severino said, a doctor told her, “Please don’t hate me” because the procedure was an elective abortion. The nurse feared losing her job and felt coerced to participate, according to Severino’s account.
The complaint was lodged several months after the medical center expanded its services in 2017 to include elective abortions.
The medical center issued a statement saying it had “promptly and thoroughly” conducted its own investigation into the allegations and “determined that they were not supported by the facts.” The statement had no additional details, saying “the issue involves patient care and personnel matters.”
Annie Mackin, a medical center spokeswoman, said UVM has “robust formal protections that strike the appropriate and legal balance between supporting our employees’ religious ethical and cultural beliefs, and making sure our patients are not denied access to safe and legal abortion.”
Mackin said the medical center did not believe HHS had legal authority to conduct its investigation, but “we had been working with them.” In addition, she said, the center did not know the inquiry was complete until it was notified shortly before Severino’s call with reporters. “We weren’t expecting anything like this,” she added.
The notice does not carry a penalty but could eventually lead to the withdrawal of federal funds, including about $1.6 million in money over the past three years from HHS’s Health Resources Services Administration, Severino said. For now, the notice gives the medical center 30 days to begin bringing its personnel rules into compliance with federal requirements about employees’ participation in procedures to which they have moral objections.
Severino emphasized that Wednesday’s action did not rely on a new HHS conscience rule, which is being challenged in court. He said it was being taken under a 1970s federal law, known as the Church amendments, which includes a requirement that employees of federally supported health-care facilities not be compelled to participate in abortions if the procedure conflicts with their beliefs.
Asked whether the case focused on a Vermont hospital because lawmakers there are trying to pass a constitutional amendment guaranteeing the right to abortion, Severino said that played no role. “If there was ever a violation of the Church amendments that needed to be enforced, it was this one,” he said.
Manion, the Kentucky-based attorney representing the nurse, said a co-worker of hers brought the incident to his attention. He then filed a three-page letter of complaint with HHS’s civil rights office in May 2018. He said the nurse had worked at the hospital for several years and left voluntarily within the past year, in large part because “she felt the atmosphere over this issue had become toxic.”
Manion said his client was not an antiabortion activist but had placed her name on a list of employees objecting to participating in the procedure. The day of the incident, he said, the nurse had scrubbed in and, when she learned the doctor was performing an abortion, was reluctant to leave, fearing that abandoning a patient could jeopardize her license. She asked whether a co-worker could replace her, Manion said, and was told that could not happen.
The two previous enforcement actions by the conscience and religious freedom division involved instances in California and Hawaii in which the states tried to compel crisis pregnancy centers to provide women with information on how to access free and low-cost abortion services.
According to HHS figures released Wednesday, the civil rights office received more than 1,300 complaints, 784 of which related to conscience or religious freedom. In comparison, HHS figures show, the civil rights office received 10 conscience-based complaints throughout the Obama administration.