Feds Issue Violation Notice To UVMMC After Nurse Reports Performing Abortion Against Conscience

The U.S. Department of Health and Human Services alleges University of Vermont Medical Center illegally coerced a nurse into assisting with what the department described as an elective abortion. This is the first enforcement action of this kind from the department's new Conscience and Religious Freedom Division. The hospital disputes many of the allegations. 

The HHS Office for Civil Rights announced the notice of violation against the hospital Wednesday. According to OCR, in May 2018 a complaint was filed by a nurse against UVM Medical Center "contending that the nurse was forced to assist an abortion in violation of the nurse’s conscience rights."

"We do not want a society where, on the issue of life and death, people are forced to violate their deepest held beliefs about it," said OCR director Roger Severino during a press call Wednesday morning.

Severino did not offer answers to reporters’ questions about the viability or stage of the pregnancy, saying only that it was not an emergency circumstance.

Severino alleged the complainant had previously registered her objections to performing abortions, and was under the impression the procedure would be in response to a miscarriage.

"She asked if something could be done," Severino said, but faced the possibility of losing her job. "She relented and has been traumatized," he said.

If the hospital doesn't amend its policies within 30 days, it will risk losing roughly $1.6 million in federal funding, according to Severino.

Stephen Leffler, interim president of UVM Medical Center said the hospital investigated the allegations and found they were not supported by the facts. He said to his knowledge, UVM Medical Center has never compelled an employee to participate in a procedure they were not comfortable with. Leffler also disputed federal regulators' characterization of UVMMC as not having cooperated with their investigation.

"From the outset, and as recently as this month, we offered to discuss our policies and practices with them," Leffler said. "We asked to receive their advice on how those policies and practices could be improved, consistent with our obligation to our patients." Leffler said the Office for Civil Rights did not take UVMMC up on the offer.

Leffler said the hospital's policy does provide that "if someone needed a life-saving procedure, that we would potentially ask staff to participate in that to save someone's life."

The hospital issued the following statement via email Wednesday afternoon:

"The University of Vermont Medical Center has robust, formal protections that safeguard both our employees’ religious, ethical and cultural beliefs, and our patients’ rights to access safe and legal abortion. We do not discriminate against any employees for exercising their rights to opt out of procedures to which they object. These procedures cover initiation and cessation of life support, organ transplant, sterilization, and termination of pregnancy. Every day, the UVM Medical Center works hard to protect the rights of the thousands of patients who seek our services and the many employees who assist in providing them.

"The University of Vermont Medical Center was disappointed to learn through the press that the Office of Civil Rights Division of Conscience and Religious Freedom was planning to announce a notice of violation today against the hospital based on a former employee’s complaint. When the UVM Medical Center first learned of the allegations that are the subject of OCR’s letter, we promptly and thoroughly investigated them and determined that they were not supported by the facts.

"Because this issue involves patient care and personnel matters, we cannot go into as much detail as OCR did today, however, we have engaged with representatives from OCR about the complaint over the past nine months. From the outset and as recently as this month, we have offered to discuss our policies and practices, and to receive OCR’s advice on how those policies and practices may be improved consistent with our obligations to our patients. Unfortunately, OCR instead chose to proceed with the announcement it issued today. We nonetheless remain willing to work cooperatively with OCR to identify any ways in which we can further support our employees’ conscience and religious rights, in a manner that is consistent with high-quality patient care, and the other legal and ethical obligations we have to our patients."

The nurse who filed the complaint against the hospital is represented by The American Center for Law and Justice, a conservative Christian-based nonprofit that has sought to halt the building of a mosque near the site of the September 11 attacks, among other controversial initiatives. Its chief counsel, Jay Sekulow, is on President Donald Trump's personal legal team.

According to ACLJ attorney Frank Manion, speaking during a radio show produced by the group Wednesday, the case came to ACLJ after a doctor at UVM Medical Center referred the nurse to the organization.

"We're just thrilled that finally, someone is enforcing the Church Amendment," Manion said on the show. "We have filed complaints with HHS over the years and after a while we realized they weren't go anywhere. … This is what we need to have done and today it's being done."

The department issued the violation under the Church Amendments, passed by Congress in the 1970s. Severino noted the Obama administration issued the last enforcement action of this kind against Mount Sinai Hospital in New York, in 2009. In that case, the courts ruled in favor of the hospital. The notice is not related to the "Protecting Statutory Conscience Rights in Health Care" rule that was announced back in May but has yet to go into effect due to legal challenges.

The Vermont Federation of Nurses declined to comment.

The citation of UVMMC comes as the Trump administration has increasingly sought to limit access to abortion across the country. Earlier this year, HHS prohibited participants in the Title X family planning program from providing or referring patients for abortion, except in cases of rape, incest or medical emergency. In response, Planned Parenthood left the $286 million federal grant program. The state agreed to provide around $800,000 to Planned Parenthood in Vermont to replace the lost federal money.

Martha Maksym, acting secretary of the Vermont Agency of Human Services, said Gov. Phil Scott's administration first learned of the alleged violation on a conference call with federal officials Wednesday morning.

"What they shared with us is that the University of Vermont’s Medical Center’s policies … about the ability to object to participating in a procedure based on religious or conscientious objection, were not adequate to protect people’s ability to refuse to participate in those procedures, and that the action was being taken,” Maksym said Wednesday afternoon. "What we heard was that HHS wanted to try to settle this voluntarily, but that it was really up to the University of Vermont Medical Center," Maksym said.

Maksym said she hasn’t had any meaningful conversations with hospital officials about the notice of violation. She said she doesn't know if state officials have ever vetted UVM Medical Center's conscience-protection policy.

Asked what role her agency will play in resolving the dispute, Maksym said: “Really none.”

"I think this is a dispute between UVM Medical Center and the Office for Civil Rights at Health and Human Services federally," Maksym said. "I'm, at this point anyway, not really seeing a role for AHS to play in this. It feels to us like it's really something between UVM Medical Center and HHS."

Vermont Attorney General TJ Donovan, a Democrat, said he thinks the move is part of a larger strategy by the Trump administration to restrict women’s access to abortion. “I think this is an attack on women’s reproductive health,” Donovan said in an interview with VPR. “I don’t UVM has done anything wrong.”

Donovan said his office reviewed UVM's policy and he thinks it strikes the balance of allowing people to access abortions, while also allowing employees to exercise their religious beliefs. Donovan said the AG’s office would "do everything to defend" UVMMC, though he said it's still too early to know if there are any specific actions the state could take.

Vermont's leading anti-abortion organization applauded the federal enforcement action. Mary Beerworth, executive director of Vermont Right to Life, said she heard about similar problems at UVM Medical Center during public hearings earlier this year on an abortion-rights bill that later passed into law.

"I have to tell you it does not come as a surprise to me," Beerworth said. "We listened to the testimony over this past legislative session. There were nurses who leveled those kinds of complaints about the Medical Center."

In the absence of any conscience-protection law in state statute, Beerworth said she's glad to see HHS enforcing federal guidelines.

"I don't understand how we could possibly be even questioning that somebody has a right to say, 'That isn’t medical care. I came to save lives, I came to help people. I don’t want to participate in that,'" Beerworth said.

Updates:

  • 2:51 p.m. Additional information and comment.
  • 3:33 p.m. The UVMMC statement and comment from Donovan.
  • 4:00 p.m. Comments via radio show from Manion.
  • Correction 4:31 p.m. A previous version of this post said the complaint was filed in May of this year — it was May 2018.
  • 5:04 p.m. Comments from Leffler.