The Church Amendment: In Search ofEnforcement

I. IntroductionOn July 7, 2009, Catherina Cenzon-DeCarlo (Cenzon-DeCarlo), a nurse for Mount Sinai Hospital (the Hospital) in New York, filed a lawsuit in the United States District Court for the Eastern District of New York alleging that she had been unlawfully compelled to assist in the performance of a late second trimester abortion over her moral and religious objections.1 Mrs. Cenzon-DeCarlo alleged violations of 42 U.S.C. § 300a-7(c) (Church Amendment)2 and requested declaratory and injunctive relief along with compensatory and punitive damages.3 Because the resolution of Cenzon-DeCarlo's claim came on a summary judgment motion brought by the Hospital, ultimately affirmed by the Second Circuit, this Note addresses the facts as alleged in the complaint.4 The resolution of Cenzon-DeCarlo's case exposes a gaping hole in the effectiveness of federal protections for individuals who object to participating in abortion procedures on religious, moral, or conscientious grounds.II. The Facts of the Cenzon-DeCarlo CaseIn August of 2004, Catherina Cenzon-DeCarlo began employment at Mount Sinai Hospital in New York.5 During her initial interviews with the Hospital, Cenzon-DeCarlo was asked about her willingness to assist in abortions. She responded that she had objections, based on her religious views, and would not be comfortable assisting in the abortion of a living child.6 The hiring officials did not express any concern to Cenzon-DeCarlo about her position on abortion.7 Indeed the hospital had a written policy allowing employees to formally object to assisting in abortions without penalty.8 In keeping with this policy, Cenzon-DeCarlo filled out the form recording her objection.9Between 2004 and May of 2009, the Hospital abided by the policy and avoided assigning Cenzon-DeCarlo to abortion cases.10 On one occasion, she was assigned to an abortion case and later removed after she reminded her supervisors that she was only willing to assist with miscarriages.11 During an on-call shift on May 24, 2009, Cenzon-DeCarlo was told that she had been assigned to a dilation and curettage (D&C) procedure which is commonly performed in the case of miscarriage.12 After examining the charts in the operation room and observing the instruments being readied, Cenzon-DeCarlo became concerned that the procedure scheduled was an abortion.13 After calling the resident assigned to the case, Cenzon-DeCarlo discovered that the procedure to be performed was actually a secondtrimester abortion at twenty-two weeks of gestation.14 After informing the resident that she would not participate in the abortion, she contacted her nursing supervisor and requested to be removed from the case.15 The supervisor instructed Cenzon-DeCarlo to find out if another nurse could cover for her and told her that she would contact a senior hospital official to ask whether she could be excused.16 When the supervisor called her back, Cenzon-DeCarlo was told that a senior hospital official had insisted that she assist in the case and had instructed the supervisor not to attempt to seek a replacement.17During her efforts to be removed from the case, Cenzon-DeCarlo was told by her supervisor that the mother could die if the procedure was not immediately performed.18 This claim contradicted the information she had received when speaking with the resident in charge of the case who had revealed that the patient was not receiving the treatment that would be necessary for someone suffering critically from preeclampsia.19 Furthermore, the case was classified as a Category II priority which required the surgery to be performed within a six hour window.20 This classification indicated that there was more than adequate time to search for and find a replacement nurse.21 Although it is not a requirement of the Church Amendment that there be other individuals willing to assist, it is worth noting that even the supervisor on duty was qualified and able to assist in the procedure and could have stepped in without causing any significant delay. …