1. See Durham, WC Jr, Wood, MAQ, Condie, SJ. Accommodations of conscientious objection to abortion: a case study of the nursing profession. Brigham Young University Law Review 1982:253–327Google Scholar (noting nurses responses to survey indicating objections inter alia to participating in tubal ligation, blood transfusions, and euthanasia, as well as abortion). See also Davis, BG. Defining the employment rights of medical personnel within the parameters of personal conscience. Detroit College Law Review 1986:847.Google Scholar

2. All states except Alabama, Connecticut, Mississippi, New Hampshire, Vermont, and Washington and the District of Columbia have conscience clause legislation. For citations to the statutes described in the text, see Wardle, LD. Protecting of the rights of conscience of health care providers. Journal of Legal Medicine 1993;14:177–230.CrossRefGoogle ScholarPubMed

3. Roe v. Wade, 410 U.S. 113 (1973).Google Scholar

4. Cal. Health & Safety Code §25955(c) (West 1984) (emphasis added).

5. Pilpel, HF, Patton, DE. Abortion conscience and the constitution: an examination of federal institutional conscience clauses. Columbia Human Rights Law Review 1974–1975;6:279–305.Google ScholarPubMed

6. It is even more ironic when a person opposing the rights of healthcare institutions to assert rights of conscience is a high official of an institution (the A.C.L.U.) that has made its reputation defending rights of conscience of unpopular organizations and their members as well as General Counsel for another institution (Planned Parenthood) that has been the leading advocate of institutional freedom of choice to promote abortion. See note 5. Pilpel, Patton. 1974–5:279. See also Rust v. Sullivan, 111 S.Ct. 1759 (1991).Google Scholar

7. See, e.g., First National Bank of Boston v. Bellotti, 435 U.S. 765, 778–84 (1978)Google Scholar (corporations enjoy constitutional protection for political speech/contributions); N.A.A.C.P. v. Button, 371 U.S. 417, 428–31 (1963)Google Scholar (cooperative group activity protected by First and Fourteenth Amendments); see also Pacific Gas and Electric C. v. Public Utilities Comm'n, 475 U.S. 1, 9–12 (1986) (compelling utility to send messages of public interest group is unconstitutional).Google Scholar

8. See, e.g., Rutan v. Republican Party, 497 U.S. 62 (1990)Google Scholar (firing public employees because of political affiliation is unconstitutional); Perry v. Sinderman, 408 U.S. 593, 596–8 (1972)Google Scholar (refusal to renew teacher's contract because of criticism is unconstitutional condition); Keyishan v. Bd. of Regents of University of New York, 385 U.S. 589, 597 (1967) (public employment may not be restricted by unconstitutional conditions).Google Scholar

9. See note 1. Durham, Wood, Condie. 1982:319.

10. A minority in this country sincerely believe that some controversial medical procedures (e.g., abortion or withdrawal of nutrition and hydration) are as abhorrent, immoral, and repugnant as Nazi (or Serbian) practices. For example, they are as offended by compulsory participation in leading a pregnant woman into the room where an abortion is to be performed (and the fetus she is carrying will be killed and dismembered) as they would be by being forced to drive a Jewish prisoner to Auschwitz or to lead a Muslim in Bosnia to a killing center. The point is not whether the minority morality is or is not correct. Rather, it is that no state should be so attached to the prevailing morality that it will not protect the right of conscientious refusal for persons who consider it immoral even to indirectly aid and assist procedures against their strong moral objections.

11. See, e.g., Nathanson, BN. Aborting America. Garden City, New Jersey: Doubleday, 1979Google Scholar (former head of abortion clinic and founder of National Association for Reform of Abortion Laws now opposes abortion); Loth R. Views on abortion collide at Republican platform hearing. Boston Globe 1992 May 27: National/Foreign, 1 (Carol Everett, former operator of abortion clinic now antiabortion advocate). See also note 1. Durham, Wood, Condie. 1982;80:324–7 (survey of nurses shows Legal Protection of Healthcare Providers some change in views about procedures such as abortion); see further notes 28 and 29 and accompanying text (Swanson case; veteran nurse changes moral views after participating in very difficult abortion).

12. See generally Cort v. Ash, 422 U.S. 66 (1975) (four-part test for implied cause of action). Watkins v. Mercy Medical Center, 364 F. Supp 799 (D. Idaho 1973), aff'd 520 F. 2d 894 (9th Cir. 1975), illustrates that the federal conscience clause creates an implicit private cause of action.

13. Doe v. Hale Hospital, 500 F.2d 144 (1st Cir. 1974). In this case the policy of a public hospital that totally prohibited elective abortions was found to violate the privacy rights of women who wanted first-trimester abortions.

14. Gray by Gray v. Romeo, 697 F. Supp. 580, 590 (D.R.I. 1988).

15. See note 14. Gray. 1988:580, 590. (“The statute is clearly limited to procedures involving abortion and sterilization.”). See further Harbeson v. Parke-Davis, Inc., 656 P.2d 483, 491 (Wash. 1983) (right to refuse to participate in abortion does not immunize doctor's failure to impart information about likelihood of child being born with serious birth defects).

16. Elbaum by Elbaum v. Grace Plaza of Great Neck, Inc., 148 App. Div. 2d 244, 255, 544 N.Y.S. 2d 840, 847 (1989):

On this point, we note that the defendants' reliance on 42 U.S.C. §300a-7 and [New York] Civil Rights law §79-i, in support of their position that they cannot be compelled to participate in the cessation of nutrition and hydration to a patient is misplaced since those statutes concern the right to decline to perform requested sterilization and abortion procedures.

17. Erzinger v. Regents of University of California, 137 Cal. App. 3d 389, 394, 187 Cal. Rptr. 164, 168 (1982). The court held that 42 U.S.C. §300a-7 did not apply to prevent a university from requiring students to participate in a comprehensive health insurance program that included benefits for persons desiring abortions or sterilization.

18. Spellacy v. Tri-County Hospital, 18 Empl. Prac. Dec. (CCH) ¶8871 (Pa. C.P. De. Cty.), aff', 395 A.2d 998 (1978).

19. See note 18. Spellacy. 1978:5605 (relying on administrative regulations interpreting the conscience clause). Alternatively, the court found that the hospital had met its duty to accommodate because it had offered her four other jobs, all of which she had declined. “There came a time in the Spellacy situation when the plaintiff had simply rejected one too many reasonable accommodation offers, and her employer could not be expected to continue generating new ones.” See note 1. Durham, Wood, Condie. 1982:318–9.

20. See note 3. Roe. 1973:179.

21. See note 3. Roe. 1973:113.

22. Georgia Criminal Code §26–1202, quoted in the Bolton Appendix, 410 U.S. at 205.

23. See note 3. Roe. 1973:197–8 (emphasis added).

24. Doe v. Bridgeton Hospital Association, Inc., 71 N.J. 478, 366 A.2d 641, 647 (1976).

25. Doe v. Charleston Area Medical Center, 529 F.2d 638 (4th Cir. 1975).

26. See note 25. Doe. 1975:642. Moreover, the federal statute at the time only provided that receipt of federal funds could not be the basis for a finding of “state action,” and the fact that CAMC admitted that its policy was based on the state laws constituted an independent and sufficient basis for finding the hospital's abortion policy to be based on “state action.” See p. 643.

27. Swanson v. St. John's Lutheran Hospital, 597 P.2d 702 (1979).

28. See note 29 and accompanying text. See also Swanson v. St. John's Lutheran Hospital, 615 P.2d 882 (Mont. 1980) (affirming award of $11,950.86 to Nurse Swanson and affirming rejection of her claim for punitive or future damages for lack of evidence).

29. See note 27. Swanson. 1979:714. The hospital administrator himself obviously perceived her denial to be based on religious/moral grounds and treated it as such, contacting the nurse's priest in an effort to have him influence her to drop her objections. The dissenters failed to explain the distinction between “emotional” and “moral” grounds. Are they really mutually exclusive categories? Their bias against conscience clause rights is evident. By contrast, in a case interpreting a conscience clause that protects the right of physicians from employment discrimination because they have performed abortions or sterilizations, a pair of federal courts did not require any evidence about the moral or religious basis for a doctor's practice or sterilizations. See note 12. Watkins. There appears to be at least a hint of anti-Catholic, antiprofile bias in the way the conscience clauses have been interpreted. See also In Re Raquena, 517A.2d 86 (N.J. Super. Ch. 1986) (unwillingness to participate in withdrawal of life-support food/hydration systems was not “pro-life” and requiring the hospital to participate in the withdrawal over its staff's moral objections). See notes 14–16 and accompanying text.

30. Brownfield v. Daniel Freeman Marina Hospital, 208 Cal. App. 3d 405, 256 Cal. Rptr. 240 (1989).

31. Although the conclusion of the court that the morning-after pill does not cause abortion is medically inaccurate (in at least some cases), the method of statutory construction is even more disturbing. The question the court had was one for which a resort to random dicta in other cases giving unsupported judicial ruminations in the context of interpreting entirely different statutes enacted by a different government is not an intelligent approach to legislative interpretation.

32. McRae v. Matthews, 421 F. Supp. 533 (ED. N.Y. 1976), rev'd on other grounds, Harris v. McRae, 448 U.S. 297 (1980). The court also cited dicta from another case.

33. See note 30. Brownfield. 1989:245.

34. St. Agnes Hospital of the City of Baltimore v. Riddick, 748 F. Supp. 319 (D. Md. 1990).

35. See note 34. St. Agnes, . 1990:343Google Scholar.

36. The district court entered a preliminary injunction protecting the hospital that remained in effect for nearly 4 years while the case was in litigation. See note 34. St. Agnes, . 1990:348Google Scholar.

37. See note 1. Durham, , Wood, , Condie, . 1982:257, 287Google Scholar.

38. See note 1. Durham, , Wood, , Condie, . 1982:287Google Scholar.

39. See note 1. Durham, , Wood, , Condie, . 1982:261–2Google Scholar. An ob/gyn resident in a university hospital reported, Although my abstaining from abortions is officially tolerated by my department, I am constantly reminded that my position on abortion is a burden and a nuisance to the rest of the department and could I please “grow up” and realize how ridiculous my position is. I am constantly receiving insinuations about my position and at times it is a bit trying, but generally I am an accepted part of the staff.

40. Diamond. Do the medical schools discriminate against anti-abortion applicants? Lincare Quarterly 1976;43:29–31Google Scholar. See note 1. Durham, , Wood, , Condie, . 1982;80:266Google Scholar. They cite a study of the Department of Health, Education and Welfare in which, despite severe methodological defects biased against finding discrimination, there was evidence of potential discrimination in admission to medical schools.

41. National Abortion Federation and American College of Obstetricians and Gynecologists. Who will provide abortions? 1990 Oct. 25–6:8. (In one half of the 72% of ob/gyn programs offering abortions training, it is optional.)

42. See note 41. NAF and ACOG. 1990 Oct. 25–6:6 (recommendation 1). The report also recommended (recommendation 3) that “physician attitudes” about abortion be addressed in the medical school or residency programs. Accreditation Council for Graduate Medical Education. Director of Graduate Medical Education Programs. 1992–1993:10, 17. ACOG is one of three organizations that sets residency program accreditation requirements for all accredited ob/gyn programs.Google Scholar

43. The American Public Health Association Resolution No. 9117 (1992) (copy in author's possession).

44. Aging America: Trends and Projections, S. Rpt. No. 80, 101st Cong., 2d Sess. 3 (1990). In 1980, 11% of the population was of age 65 and above. By 2030, this group will constitute 23% of the population, according to U.S. Census Bureau projections.

45. Callahan, D. Setting Limits: Medical Goals in an Aging Society. New York: Simon and Schuster, 1987:20.Google Scholar

46. See note 45. Callahan, . 1987:101Google Scholar.

47. See note 45. Callahan, . 1987:20Google Scholar.

48. See note 44. Aging America. 1990:129, Table 6–2. See also note 45. Callahan, . 1987:225Google Scholar.

49. See note 44. Aging America. 1990:11.Google Scholar

50. 42 U.S.C. §300a–7 (1988).

51. H.R. 25, S. 25, 102d Cong., 2d Sess. (1992).

52. 138 Cong. Rec. 25 June 1992, at S9028 (written outline of effects of S.25 inserted in remarks of Sen. Cranston). See also letter from Barr, William P., Attorney General, to Hon.Google ScholarKennedy, Edward M., Chairman, Committee on Labor and Human Resources (1 July 1992): “Although the revised bill would permit States to protect the rights of unwilling individuals to refrain from performing abortions, the bill does not permit institutions to refuse to perform abortions.”Google Scholar