Thursday, December 16, 2010

A right without a remedy

What's a right without a remedy? Don't ask me. But the plaintiff in a lawsuit against Mount Sinai Hospital in New York City certainly found out.

The case is Cenzon-DeCarlo v. Mt. Sinai Hospital, decided on November 23. Plaintiff is an operating room nurse who signed a form upon employment indicating her unwillingness to perform abortions. Written policy at the hospital allowed her to sign this form as a conscientious objector. Five years later, she was compelled by supervisors to participate in a late-term abortion. When she grieved this, she claims that supervisors then tried to coerce her into assisting in emergency abortions.

You may not know this, but the "Church Amendment," at 42 U.S.C. sec. 300a-7(c), says that certain entities (like Mt. Sinai Hospital) cannot discriminate against health care personnel because she refused to perform or assist in the performance of an abortion on religious or moral grounds. Question: can plaintiff sue over the Hospital's violation of this law?

The answer is no. The statute recognizes Cenzon-DeCarlo's right not to help with abortions, but she has no remedy, i.e., no damages, which means the case is essentially not worth bringing. Not every statute creates a "private right of action," or the right to bring a lawsuit for damages. The title of the statute says, "Individual Rights," but that is not dispositive. While the Supreme Court did observe 30 years ago that the Court had consistently implied a remedy where a right was found, "the Supreme Court's jurisprudence in this area has evolved considerably since then. We are mindful of a more recent instruction from the High Court that 'the judicial task is to ... determine whether a statute displays an intent to create not just a private right but also a private remedy.'" In other words, the Supreme Court has changed. It's not 1980 anymore.

The Court of Appeals (Parker, Wesley and Jones [D.J.]), rules there is no evidence that Congress intended to allow plaintiffs like Cenzon-DeCarlo to recover any remedies for the violation of this law. "While there may be some colorable evidence of intent to infer or recognize an individual right [based on the "Individual Rights" headline), there is no evidence that Congress intended to create a right of action." No right of action means no lawsuit. No lawsuit means no remedies. No remedies means no damages.

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