Fired Pro-Life Nurses Can Sue Based On Religious Discrimination

By Liz Townsend

Two nurses who allege they were fired for refusing to perform abortions can sue their former employer for religious discrimination, a New York state appeals court ruled July 30.

The nurses' case was originally dismissed by a state Supreme Court judge in July 1997 because the New York civil rights law allowing health care workers to opt out of assisting in abortions only provides for criminal penalties. Therefore, the nurses' civil suit was not allowed under the law (see NRL News, 8/12/97, p. 8).

The appeals court agreed with this part of the decision but unanimously ruled that a different law also applied to the nurses' case, one that can be tried in a civil court.

"This is a very important, landmark decision," Thomas Conway, a lawyer who wrote New York State Right to Life Committee's amicus brief in the case, told NRL News. "It could provide broad protection, not just to health care workers, but to anyone involved in a conscientious objection to any form of conduct, including abortion as well as end-of-life decisions."

The appeals court judges based their decision on Executive Law § 296, which forbids employers from firing or discriminating against employees based on their religious beliefs. "We conclude that plaintiffs have stated their moral belief with respect to abortions," Judge J. P. Mikoll wrote. "This moral belief constitutes an expression held with the strength of traditional religious conviction. Plaintiffs have also sufficiently alleged that they were terminated due to those beliefs."

The case will now return to a trial court, unless the nurses and the hospital are able to agree on a settlement before a trial begins. Conway said that New York State Right to Life would file another amicus curiae [friend of the court] brief in support of the nurses if the case goes to trial. The nurses' plight has shone a spotlight on the problems facing pro-life health care workers. "Ob-gyn nurses who refuse to participate in abortions have limited possibilities for employment in their chosen field of nursing," Jeanne Head, R.N., an obstetrics nurse and NRLC board member from New York, told NRL News. "It is very difficult or next to impossible for pro- life nurses who wish to work in obstetrics or gynecology to remain in these areas in hospitals where abortions are performed. I know of nurses who have lost their jobs or were subject to harassment. Even when they are not dismissed or transferred to another department for refusing to participate, they are frequently under such tremendous pressure that it becomes very difficult to remain."

The pressures they face range from resentment on the part of colleagues to outright hostility. "It takes a great deal of courage and perseverance to remain in a job under such conditions," Head states. "I hope this decision will be a step forward, and will provide more protection for nurses and other people in health care who refuse to violate their consciences by participating in abortion."

This case began in October 1996, when Deborah Larson and Christine Thornton filed a letter at the Woman's Health Clinic at Albany Medical Center stating that they did not want to assist in any abortion procedure, based on their religious beliefs.

According to the complaint filed by the nurses, on October 10 they were asked to prepare a woman whose baby had died in utero for a dilation and evacuation to remove the dead baby. Their duties would include a procedure to open the woman's cervix, called a laminaria, a procedure that is also commonly used in elective abortions.

The nurses insisted that they did not refuse to help, but they asked their supervisor for assurance that if they helped perform the laminaria in this case they would not be expected to perform it again for an elective abortion. Their supervisor, the complaint alleged, did not respond.

After Larson told the doctor she would do the procedure if no other nurse were available, another nurse performed the laminaria, the complaint stated.

The nurses were charged with insubordination and fired on November 22, 1996. "Our claim is that they were fired for having filed the letters" opting out of abortion procedures, the nurses' lawyer Michael McDermott told NRL News.

The hospital's lawyer Heather Diddel, told the Albany Times-Union the nurses were fired for "job misconduct and insubordination," not for their beliefs.

Larson and Thornton are now working at nursing homes and earn much less than they did at Albany Medical Center, McDermott told reporters.

"We are delighted that the court has given protection to these two courageous women who risked, and lost, their jobs rather than betray their conscience," said Mary Wright, chair of New York State Right to Life. "They have achieved victory not only for themselves, but also for the countless other nurses, doctors, and health care professionals who want no part of abortion, and who will also be protected by this precedent."