Lawsuit Takes Aim At Government Coercion Of Doctors’ Consciences

This week in federal court in Philadelphia, the American Center for Law and Justice filed a lawsuit on behalf of a pediatrician who was fired after requesting a religious accommodation of her beliefs against dispensing contraceptives – including the morning-after pill – to her pediatrics patients. Dr. Doris Fernandes worked for 35 years as a pediatrician at a clinic that serves the city’s most economically vulnerable children and adolescents.  She is a Catholic. Her religious beliefs prevent her from prescribing contraceptives, especially those with what she understands to be an abortifacient mechanism of action, for children and adolescents who come to her for medical care. She also believes that making referrals for such services involves her in an impermissible degree of moral complicity. For three and a half decades these beliefs did not prevent her from providing comprehensive primary and preventive care to inner-city Philadelphia kids. On those very rare occasions when a pediatrics patient would present with a request for contraception, Dr. Fernandes would simply tell the scheduling nurse, “I don’t do that.”  The patient would then be reassigned to another doctor.

Beginning in early 2013, however, the City’s Department of Public Health began requiring all of its doctors – including pediatricians - to participate in promoting contraceptive use, particularly such things as the morning-after pill and long-acting contraceptives such as Depo-Provera, among the population served by the city’s public health clinics. This effort appears to have been driven in large part by the receipt by the city of grants under the Affordable Care Act (“Obamacare”) directed at improving access to “preventive care.”

In February of 2013, Dr. Fernandes’ supervisor told her that she would now be required to dispense contraceptives of all kinds, including abortifacients. Fernandes responded by formally notifying the Department of her religious-based inability to participate - either directly or by referral - and requesting that she be permitted to continue her 35-year practice, a practice that had never caused controversy or disruption of patient care. In response, in November 2013, the City fired her. In its letter of termination, the City cited a December 2012 policy statement from the American Academy of Pediatrics that urged all pediatricians to participate (even if only by agreeing to refer) in the provision of so-called “emergency contraceptives” to adolescents.

In the lawsuit filed this week, the ACLJ alleges that in terminating Dr. Fernandes, the City of Philadelphia violated her legal and constitutional rights. Federal civil rights laws – specifically the Civil Rights Act of 1964, or, Title VII - require that an employer accommodate an employee’s religious objections to participating in some job duties unless doing so would cause the employer an “undue hardship.” Such an accommodation would have been easy here, as the history of Dr. Fernandes’ work with the City demonstrates.

In addition, Dr. Fernandes is protected by the First Amendment, as well as a federal statute known as the “Church Amendment.” The latter prohibits recipients of federal grants from discriminating against medical personnel who decline “to perform or assist in the performance of any part of a health service program . . . if . . .  performance or assistance in the performance of such part of such program or activity would be contrary to his religious beliefs or moral convictions.” Finally, Fernandes is also protected under various provisions of Pennsylvania law.

In dismissing Dr. Fernandes from her position, the City of Philadelphia has ignored not only the letter of several laws, but also the longstanding policy codified by those laws. That policy is simply the idea that, in a religiously pluralistic and diverse society, we hold in highest regard and grant legal protections for the right of individuals to live and work in a manner consistent with their consciences.  This idea, ironically enough, was the guiding principle of the Quaker founders of the City of Philadelphia itself and, more recently, has been the touchstone of the patchwork of federal and state conscience laws that have sought to safeguard conscience rights in an increasingly diverse culture.

As Dr. Fernandes’ own work history amply proves, it is possible to respect the conscience rights of medical professionals without compromising patient care. For over thirty years the City of Philadelphia had no difficulty doing just that. Its recent change of attitude – whether driven by directives from Washington or medical lobbying groups such as the American Academy of Pediatrics – must not be permitted to stand.

The case has been filed in the U.S. District Court for the Eastern District of Pennsylvania.