Conscience and the Law in New York

As the late Henny Youngman told it, Moses came to the top of Mt. Sinai, looked about and said, “This would be a wonderful place to build a hospital.” But life in Mt. Sinai hospital in New York was not so wonderful recently for Catherina Lorena Cenzon-DeCarlo, thirty-five, a Filipina nurse, who was compelled to participate in a late-term abortion. When she joined the staff in 2004, she made it known that, as a Catholic, she had religious and moral objections to participating in abortions.

The administrators raised no objections, and professed themselves willing to make accommodations. The case at hand involved a woman twenty-two weeks pregnant. The patient was diagnosed with preeclampsia, a medical condition described as “a complication involving hypertension and protein in the urine.” Ms. Cenzon-DeCarlo thought that the standard treatment prescribed magnesium sulfate, not an abortion. But the hospital was understaffed; her supervisors pressed her into service. She pointed out that other nurses could be called. Still, the supervisors would not have it, and the doctor would suffer no delay.

Cenzon-DeCarlo was threatened with the charge of “patient abandonment” and, with that, the loss of her career. With that kind of threat she finally relented, and participated in the surgery under protest. But in the course of that surgery, as she later charged, she was “forced to watch the doctor remove the bloody arms and legs of the child from its mother’s body with forceps” and then carry those parts away.

Ms. Cenzon-DeCarlo has filed suit now against the hospital, invoking the rights of conscience that are still part of federal law, quite apart from the moves of the Obama Administration to sweep all of those protections from the books. If she and her lawyers persuade a jury, the hospital could be stripped of its federal funds, which in 2007 amounted to $211 million. That kind of penalty could teach a lesson that reverberates.

But the law is one thing, the administering of the law is another. The federal laws to protect the conscience of doctors and nurses spring from an ethic that is not widely shared in New York. To use some older language, the political class that “forms the regime” in New York – the people who hold office, public and private, and who move in the climate of opinion in the city and state – just will not put up with these claims of the nurse. In the air of New York, abortion is regarded as a right, unalloyed and urgent. No one who obstructs the honoring of that right is likely to be regarded as doing anything remotely “rightful.”

But the case also discloses the tensions at work these days in claims of “conscience.” “Conscience” is often described as the understanding held by any person of “his own values.” The claim of conscience is a claim of respect for the integrity of a person’s beliefs, quite apart from the substance and character of those convictions. But that recent version, widely diffused, stands in sharp contrast, to the understanding taught by John Paul II and Benedict XVI. In this understanding, “conscience” is a matter of knowing, not feeling; it is directed to a set of objective moral truths, or what some of us call the natural law.

But as John Paul II complained, those people steeped in the ethic of relativism will see the teaching of the Church merely as an effort to “‘exhort consciences’ and to ‘propose values’, in the light of which each individual will independently make his or her decisions and life choices.” Seen in this light, Ms. Cenzon-DeCarlo is merely invoking her personal, subjective beliefs. And in doing that, she is resisting the needs of someone bearing a genuine right, recognized in the law and binding on everyone. Her “religious claims” are no more likely then to be honored than “religious claims” of the man who insists on having his widow burned on his funeral pyre.

But if the claim of conscience is understood in its deeper sense, Ms. Cenzon-DeCarlo is challenging nothing less than the moral ground, and therefore the moral justification, of the law itself. It is not merely that the right to abortion should not be binding on her; but rather that the laws on abortion are built now on an understanding deeply corrupted: they should not be regarded as valid for anyone. And yet, that makes things, for her, even worse. For matters not overly urgent or important, the law can give many prudential exemptions. But when the political class is convinced that abortion is thoroughly, unarguably right, no words against it will be honored, no exemptions will be brooked.

On the other hand, what if a jury of ordinary people simply react as ordinary people would to the picture of a baby dismembered, with each bloody part carefully removed from the womb? What if the case breaks through the haze of slogans and brings home to people directly, in their face, what abortion really is? Fr. James Burtchaell used to say that the Church, drawing on its vast experience, holds up to people a vivid portrait of what they will look like if they pursue the lives they are misusing. In this courtroom in New York, this young woman, the niece of a bishop in the Philippines, is doing the work of the Church.

Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding. He is the author of Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is available for download. His new book is Mere Natural Law: Originalism and the Anchoring Truths of the Constitution.