A New York federal appellate court has ruled that an anti-abortion Filipino-American nurse does not have the right to sue the hospital that allegedly forced her to participate in terminating the late-term pregnancy of an ailing mother.
Catherine Cenzon-DeCarlo, a Catholic operating room nurse from Brooklyn and employed at Mt. Sinai Hospital, filed a lawsuit for severe emotional trauma and coercion after claiming that she was forced to participate in an “emergency” abortion.
She claimed in court papers that administrators at Mt. Sinai had threatened her with charges of “insubordination and patient abandonment” in May 2009 if she did not honor a last-minute summons to assist in a scheduled late-term abortion.
In January, the case was dismissed by a lower federal court — the United States District Court for the Eastern District of New York — after finding that the Church Amendments do not provide for a private, individual cause of action.”
That’s when the case was appealed to the U.S. Court of Appeals for the Second Circuit.
In the latest ruling released last week, the appellate court found that there is no right to private action or private remedy under the statue cited by Cenzon-DeCarlo in her suit — the so-called “Church Amendment.”
That amendment protects health care workers working for federally-funded entities from being discriminated against because they refused to perform abortions on religious or conscience grounds.
DeCarlo’s attorneys told lifenews.com they will vigorously press the case to protect their client’s rights.
The lawyers claimed that since 2004, officials at Mount Sinai knew that DeCarlo — a devout Catholic and niece of the Catholic Bishop of Baguio City, Philippines (Carlito Cenzon) — would not consent to assisting in an abortion.
The hospital, the plaintiff’s lawyers said, insisted on her participation in the procedure on the grounds that it was an “emergency” and threatened that she would lose her nursing license and potentially her job by not taking part.
Mt. Sinai responded by saying Cenzon-DeCarlo had no right to sue and no legal rights.
The Alliance Defense Fund filed two lawsuits on Cenzon-DeCarlo’s behalf — a state lawsuit and a federal one claiming Mt. Sinai ignored federal laws prohibiting such coercion while receiving hundreds of millions of dollars in federal funding.
In May, Americans United for Life (AUL) had filed an amicus brief in support of DeCarlo on behalf of the National Association of Prolife Nurses, the American Association of Pro-Life Obstetricians and Gynecologists, Physicians for Life, Christian Medical & Dental Associations, and the Catholic Medical Association.
“Together, these groups represent over 19,000 health care professionals across the nation whose freedom of conscience is implicated when facilities like Mt. Sinai Hospital are allowed to force participation in abortion and other controversial procedures without regard to their employees’ religious, moral, or conscientious convictions,” said AUL attorney Mailee Smith.
‘A fundamental right’
“The (appellate) court’s ruling shows its total disregard for the rights of conscience of our healthcare providers,” Smith said. “The right not to participate in a procedure is a fundamental right. But by forbidding Ms. DeCarlo from suing her employer, the Second Circuit has completely eviscerated that right.”
ADF Legal Counsel Matt Bowman told LifeNews.com earlier that pro-life medical workers deserve to be protected from being forced to assist an abortion procedure.
“Pro-life nurses shouldn’t be forced to assist in abortions against their beliefs,” he said. “It is illegal, unethical, and a violation of Cathy’s rights of conscience as a devout Catholic to require her to participate in terminating the life of a 22-week pre-born child. It was not only wrong, it was needless.”
Despite the fact that the patient was apparently not in crisis at the time of the surgery, the hospital allegedly insisted on Cenzon-DeCarlo’s participation in the procedure on the grounds that it was an “emergency,” even though the procedure was not classified by the hospital as such.
The Filipina immigrant RN was 30 minutes into her early-morning shift when she realized she had been assigned to an abortion.
She begged her supervisor to find a replacement nurse for the procedure “which dismembered a preborn child in the 22nd week of gestation.”
The hospital had a six-hour window to find a fill-in, her suit says.
Her superiors reportedly told a weeping Cenzon-DeCarlo the abortion was necessary because the patient had preeclampsia, a condition marked by high blood pressure that can lead to seizures or death if left untreated, and that the nurse was needed to abort the baby.
The nurse said she knew such a condition can be treated without the necessity of an abortion, the suit says.
When Cenzon-DeCarlo was told the unborn child was alive, she immediately objected to Dr. Noel Strong, the resident assigned to the procedure.
A series of calls to the nursing supervisor, Fran Carpo, and her supervisor, Ella Shapiro, followed, according to the suit.
The orders came back from Carpo that the Filipina nurse must assist in the procedure, the suit says.
Cenzon-DeCarlo reportedly repeated her longstanding objection and pleaded with Carpo to call other nurses instead.
Carpo said that Shapiro had insisted that Cenzon-DeCarlo assist on the procedure, and had prohibited Carpo from even trying to call other nurses as replacement.
Carpo also said that “Dr. Silverstein had yelled at her over the phone in opposition to any delay in the case as a result of Cenzon-DeCarlo’s request for accommodation,” the court document explains.
Then the threats began, the suit says.
Aside from the emotional and psychological trauma, Cenzon-DeCarlo had been subject to financial losses because she is no longer scheduled for as many on-call assignments that supplement her income as she was before the abortion, the suit alleges.
The Filipino Reporter first reported Cenzon-DeCarlo’s story in it July 31-Aug. 6, 2009 edition.
In its state lawsuit, ADF attorneys allege that Mt. Sinai is violating state conscience laws, as well as state laws against religious employment discrimination and intentionally inflicting emotional distress on an individual.
“An individual’s conscience is often what brings health care workers into the medical field,” said lead counsel Joseph Ruta.
“Denying or coercing their conscience will likely drive them right out.”
Cenzon-DeCarlo previously told the New York Post about what it felt like to have to participate in an abortion against her wishes.
“It felt like a horror film unfolding,” she said. “I couldn’t believe that this could happen.”
She told the newspaper she has been having nightmares and trouble sleeping ever since the May 24, 2009 incident.
“I felt violated and betrayed,” Cenzon-DeCarlo said about how officials at the hospital treated her after knowing her faith and values.
She had hoped the lawsuit will be sufficient to restore protection for her religious and moral views about abortion in the workplace.
“I emigrated to this country in the belief that here religious freedom is sacred,” said the mother of a two-year-old. “Doctors and nurses shouldn’t be forced to abandon their beliefs and participate in abortion in order to keep their jobs.”
Cenzon-DeCarlo is a 1995 graduate of St. Louis University in Baguio City.
She is described in court papers as having a reputation for “a high level of expertise” and competency in various medical disciplines.
She was reportedly accustomed to assisting at similar procedures that followed a miscarriage.
She was an operating room nurse at The Medical City, the largest Philippine hospital located in Pasig City, before she moved to New York City in 2001 and started at Mount Sinai on the East Side also as an OR nurse in 2004.
She still works at Mt. Sinai.