THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Monday, March 25, 1996 TAG: 9603250046
SECTION: LOCAL PAGE: B1 EDITION: FINAL
SOURCE: BY MARC DAVIS, STAFF WRITER
DATELINE: NORFOLK LENGTH: Long : 151 lines
Two labor-and-delivery nurses have sued Sentara Norfolk General Hospital, claiming they were forced out of their jobs because they had moral objections to helping perform abortions.
The nurses say Sentara broke a federal law barring religious discrimination and a state law that bars hospitals from forcing employees to participate in abortions if they have moral objections.
Each lawsuit seeks $750,000 in compensatory damages and $350,000 in punitive damages. They were filed simultaneously by the same attorneys earlier this month in Norfolk Circuit Court.
``We're not basing this case on abortion being right or wrong,'' said one of the nurses' attorneys, Randolph A. Raines Jr. ``This is not a case about abortion. . . . It's an employee-employer case.''
The nurses' other attorney, Ann K. Sullivan, said the cases could set a precedent statewide because the issue has never been tried in Virginia, even though the state's ``Conscience Clause'' law is 22 years old.
One nurse, Nancy C. Benson of Norfolk, quit or was fired in December 1994. The other, Deborah J. Michael of Gatesville, N.C., quit or was fired two months later, in February 1995. Both declined to talk about their cases for this story.
Sentara strongly denies their claims.
In a statement Thursday, the health-care company said that neither nurse expressed religious objections to performing abortions, and one nurse had actually asked to help in abortions.
Sentara Health System, which owns several hospitals and nursing homes, also said it has a policy of honoring written requests from employees who ask to be excused from participating in abortions.
That would be consistent with Virginia's ``Conscience Clause.'' The 1974 law forbids hospitals from disciplining or firing an employee who objects to participating in abortions ``on personal, ethical, moral or religious grounds.''
Sentara attorney William R. Furr said, ``The key distinction with this case is that neither of these nurses articulated any objection that they opposed terminations (abortions) on personal, religious or ethical grounds. If they had, they would not have been required to assist in terminations.''
Most labor-and-delivery nurses dislike abortion assignments, Furr said, but only moral or religious objections are considered valid.
In the statement Thursday, Sentara said abortions are rare at Norfolk General Hospital. They are done only when the mother's ``physical or psychological health'' is in jeopardy, or if the fetus has ``an extreme birth defect'' that jeopardizes its life, the company said.
The simpler case is Benson's.
She started working at the hospital's labor-and-delivery unit in 1992. At the time, her lawyers say, Benson told her supervisor she objected to abortions on moral grounds. For 2 1/2 years, the supervisor honored that objection.
In 1994, however, a new supervisor arrived and changed the rules, Benson's lawyers say. What happened next is in dispute. Benson's lawyers say it happened this way:
On Dec. 22, 1994, Benson was assigned to an abortion for the first time in her career. She told the charge nurse, ``You know I don't do these,'' but she was ordered to assist. Benson complied.
The trouble began when the patient asked Benson, ``Are you pro-life or pro-choice?'' Benson reportedly answered, ``I'm pro-life, but I'm going to help you through this.''
The patient's husband became irate and a doctor intervened. He asked Benson if she had told the patient she was pro-life, and Benson said yes. The doctor then relieved her.
About 10 minutes later, Benson was summoned to a meeting with her supervisor, Mary Schwarga, and a personnel representative. They said they would suspend, then fire, Benson. The nurse said she was just being honest with the patient, building a rapport.
Benson's lawyers say Schwarga told Benson she should get counseling ``to better understand the importance of abortions being done in a clinical setting.''
Benson resigned a few days later.
``She should never have been put in there (with the abortion patient) in the first place,'' Sullivan, the attorney, said.
Sentara, however, says that Benson never told her boss that she had moral objections.
``Although Ms. Benson may have expressed reservations on one occasion about participating in a termination that day, she did not indicate it was because of any personal, ethical or religious reasons,'' Sentara said in a statement. ``The mere fact that Ms. Benson may have expressed a reservation about participating in a termination that day does not suggest that she had a religious objection to such participation.''
The Michael case is more complex.
Michael started in 1994. At the time, she was suffering from depression after losing a baby to miscarriage, her lawyers say. From the start, they claim, Michael told her supervisor she objected to abortions for religious reasons.
At first the supervisor respected these wishes, the lawyers say. Then the new supervisor, Schwarga, arrived. ``Her attitude was, `This is something we are just not going to condone anymore. They (abortions) have to be done by everybody,' '' Raines says.
The lawyers say Michael made a written request to transfer out of labor-and-delivery, and suggested 15 units in which she could work. She did not get the transfer.
Instead, the lawyers say, Michael was assigned to three abortions: one each in October, November and December 1994. They say she participated in each, fearing she would be fired if she refused.
In her lawsuit, Michael claims that she ``was made physically and emotionally ill'' by the abortion work. She sought medical and psychological care and missed time from work, her lawyers say.
Michael was fired in January 1995 for absenteeism, then reinstated a few days later, the lawsuit says. She quit in February 1995 when she realized she would not be transferred out of labor-and-delivery and she would not be exempted from abortion work, Sullivan said.
Sentara, however, says Michael never made moral objections to abortions.
``In fact,'' the company statement says, ``Ms. Michael actually requested the opportunity to assist in terminations. She commented to several employees that she wanted to have that assignment.''
Furr, the Sentara attorney, says several employees have come forward to say Michael volunteered for such work because, in her own words, ``she wanted to get back on the horse.''
``Labor-and-delivery nurses, as a group, probably don't cherish the assignment of assisting in terminations,'' Furr said. ``They'd prefer to assist in the birth of a child.''
Sentara will try to move the lawsuit to federal court where, among other things, it probably will go to trial faster. The company also will ask next week that parts of the lawsuits be thrown out, and that Schwarga be dismissed as a defendant because she was not the nurses' employer, Furr said. ILLUSTRATION: Graphic
[Side Bar]
Virginia Code Section 18.2-75, the Conscience Clause:
Any person who shall state in writing an objection to any
abortion or all abortions on personal, ethical, moral or religious
grounds shall not be required to participate in procedures which
will result in such abortion, and the refusal of such person . . .
shall not form the basis of any claim for damages . . . or for any
disciplinary or recriminatory action against such person, nor shall
any such person be denied employment because of such objection or
refusal. . .
Position statement of the Association of Women's Health,
Obstetric and Neonatal Nurses:
Nurses have the right to refuse to assist in the performance of
abortion and/or sterilization procedures, in keeping with their
personal moral, ethical, or religious beliefs. This refusal should
not jeopardize the nurses' employment, nor should the nurse be
subjected to harassment or embarrassment because of their refusal.
Nurses should not impose their personal beliefs on patients or
other personnel.
Nurses have an obligation to inform their employers, at the time
of employment, of their attitudes and beliefs regarding abortion and
sterilization.
KEYWORDS: LAWSUIT NURSE ABORTION SENTARA NORFOLK GENERAL by CNB