As reported earlier by The New American, in September the hospital had initiated a policy requiring that nurses assigned to its Same Day Surgery Unit assist with abortion procedures or face being fired. But ADF noted that UMDNJ was receiving approximately $60 million annually in federal dollars, and so was prohibited by federal law from forcing employees to participate in abortions. In addition, New Jersey law states that no person “shall be required to perform or assist in the performance of an abortion or sterilization.”
ADF Attorney Matt Bowman, who represented the nurses in the case, recalled that the change in hospital policy had come “out of the blue,” noting that UMDNJ “had been performing abortions for decades without forcing nurses to violate their religious beliefs.” In September hospital officials announced to nurses at the Same Day Surgery Unit that they would now be required to assist with the procedures. The hospital instituted the policy change the following month “and repeatedly threatened that they must assist abortions or be terminated,” Bowman explained. “When one nurse objected to assisting abortions on the grounds of her religious beliefs, a supervisor responded that UMDNJ has ‘no regard for religious beliefs’ of nurses who object to participating in abortions.”
After the nurses filed suit, the hospital released an e-mail statement through its attorneys insisting that the nurses were “not required to assist in abortion procedures,” but were only required “to provide patients who have elected to terminate their pregnancies with pre-operative care (not including the administration of induction medications), and postoperative care.” The hospital argued that the “pre- and post-operative care provided to these patients is of the same nature as that provided to patients who have undergone other surgical procedures. In short, UMDNJ is in full compliance with the laws cited in your email.”
Bowman responded to the e-mail by explaining that “the nurses have indeed been required to assist during abortions and not merely ‘pre-’ and ‘post’ — including when the hospital gives women Cytotec to induce labor and then leaves the women in the nurses’ pre-operative care during the delivery-abortion.” He noted that “federal law … very explicitly gives the nurses the right to opt out of assisting with any service they object to, whether pre-abortion, post-abortion, or otherwise.”
In November, the U.S. District Court for the District of New Jersey issued a temporary restraining order barring the hospital from forcing nurses to assist with abortions until the court could further consider the case. At a follow-up hearing on December 22, an agreement was negotiated between the two parties, with the hospital promising not to replace the pro-life nurses or reduce their hours, and the nurses agreeing that they would assist women suffering from emergencies related to abortion until other staff could relieve them.
ADF noted that since “abortions are all elective, outpatient surgeries, and the court is requiring the hospital to fully staff all abortion cases with non-objecting medical personnel, the pro-life nurses should never actually be needed in any such case.” The judge at the hearing warned that the nurses could return to court if the hospital reneges on its promise by assigning them to abortion cases or “pretextually” attempting to require them to assist with the procedures.
Bowman applauded the decision in the hard-fought case. “No pro-life medical personnel should be forced to assist or train in services related to abortions,” he pointed out. “The hospital has finally done the right thing in agreeing to obey the law and not force our clients to do any work on abortion cases in violation of their beliefs…. We hope other hospitals will realize that they should agree to obey conscience laws that protect pro-life medical personnel.”
Attorneys for UMDNJ agreed that the settlement was best for both parties. “The hospital is very pleased it’s resolved,” said Edward Deutsch, one of the attorneys representing the hospital. Another UMDNJ lawyer. John Peirano, told the NJ.com news site that the hospital’s legal team “accomplished the goal that we wanted to accomplish. I think it’s a good resolution for both sides.”
But some of the nurses in the case expressed their concern that the hospital might not hold up its end of the agreement. “I’m still scared for the situation — that they’ve hired four nurses and that we may be surplus,” Fe Esperanza-Racpan Vinoya told NJ.com. She was referring to the four nurses the hospital hired while the case was pending in court. Another of the nurses, Beryl Otieno Ngoje, added that “we want to keep the channels open [with the judge.]”
Not surprisingly, the ACLU found a way to impose its opinion in the case, expressing “concern” that the issue of religious faith might be used to discriminate against women seeking to terminate the lives of their unborn children. “No one should ever have to worry about facing discrimination when they check in to the hospital,” intoned Brigitte Amiri, an attorney with the ACLU’s Reproductive Freedom project. “No woman should have to fear that medical staff will place ideology over duty or deny her care.”
But U.S. Representative Chris Smith (R-N.J.) explained in a statement that “UMDNJ’s coercive abortion participation policy … was a blatant violation of the rights of its health care professionals. The right to conscience is a federally protected fundamental right that cannot be abridged, undermined, or violated in any way.”
The pro-life congressman applauded the agreement between the nurses and the hospital, noting that the pro-life nurses “may continue to provide compassionate life-affirming care without being complicit in the destruction of innocent human life,” while UMDNJ will bear the responsibility of making sure that “respect for conscience is implemented through a hospital-wide policy without nuance, loopholes, ambiguity, or small print.”
He warned that a “durable, transparent, and effective means of monitoring compliance with federally protected conscience rights must be put in place to ensure that no one at UMDNJ — including [each of] the nurses who asserted their federally guaranteed rights not to participate in any way in the killing of an unborn child — [is] harmed, subjected to any discrimination, or retaliated against now or at any time in the future.”