Abortion law's clause under study Health-care worker protections debated

February 20, 1991|By Sandy Banisky

Less than a day after Maryland's new abortion-rights bill was signed into law, the debate continued yesterday over the measure's so-called conscience clause, the portion of the bill meant to hold harmless doctors and nurses who don't believe in abortion.

Two delegates -- Brian K. McHale, D-Baltimore, and Timothy F. Maloney, D-Prince George's -- have drafted bills meant to clarify the wording in the new law.

But the leaders of the House and the Senate do not appear anxious to reopen the contentious abortion debate -- even over so narrow an issue as the conscience clause. And the future of both the McHale and the Maloney proposals is uncertain, both delegates agree.

Maryland law now says that no health-care worker can be forced to perform or participate in an abortion or refer a patient for an abortion. But the new abortion law, scheduled to take effect July 1, deletes the legal protections for health-care workers who will not refer a patient for an abortion.

Abortion-rights advocates say the change is important because it will allow a woman to sue if a doctor refuses to refer her for an abortion that she needs to protect her health.

In their last-ditch fight against the bill, Roman Catholic hospitals and Baltimore Archbishop William H. Keeler protested that the change in the law would leave doctors and nurses who do not XTC believe in abortion open to civil lawsuits by patients or disciplinary action by an employer if they refuse to refer a patient for an abortion.

Dr. Vincent de P. Fitzpatrick, head of obstetrics and gynecology at St. Joseph Hospital, a Catholic institution, said he cannot recall an instance when a woman has filed suit because a health-care worker did not refer her for an abortion.

Still, he said, "in the liability climate here, I think it would be right tohave this protection."

But Attorney General J. Joseph Curran Jr., in a letter to delegates, said that the conscience clause in the new bill will not require anyone to refer a patient for an abortion. Nor, he said, does it remove any legal protections -- except in cases where an abortion is medically advisable and the woman suffered injury because her doctor did not refer her for one.

Yesterday, Mr. McHale said he had lined up several sponsors for a bill that would write the attorney general's explanation into law to make clear that lawsuits could be filed only if the doctor or nurse violated "sound medical practice."

But Delegate Maloney is preparing a different bill. His measure would replace the conscience clause in the new law with the current language -- which includes the legal protection for health-care workers who will not make abortion referrals.

"There is nothing broken with the existing conscience clause," Mr. Maloney said. "There's no reason to change it."

Yesterday, Dr. Fitzpatrick, who does not believe in abortion, said he will not change his practice no matter what is written into law.

He said he does not discuss abortion with a patient in good health who is considering abortion "because she's decided she doesn't want the baby."

Should a patient want to discuss it, "I would tell her, 'Here's how I feel about it. I don't participate. I don't refer,' " Dr. Fitzpatrick said.

But in cases of medical emergency -- if, for instance, a pregnant woman is hemorrhaging -- Catholic hospitals would perform whatever medical procedures were needed to protect the patient, Dr. Fitzpatrick said.

He said the question is not so clear-cut when a patient has a health problem, such as lupus or cancer, and a pregnancy might strain her health but not put her in immediate danger.

"It would be up to the patient," Dr. Fitzpatrick said. "I would consult with her internist. You do what is appropriate."

Matters of conscience

Current law states:

"A person may not be required to perform or participate in, or refer to any source for, any medical procedure that results in artificial insemination, sterilization, or termination of pregnancy."

Law enacted by General Assembly and signed by Gov. William Donald Schaefer states:

"A person may not be required to perform or participate in any medical procedure that results in artificial insemination, sterilization, or termination of pregnancy."


The new law, said Delegate Samuel I. Rosenberg, D-Baltimore, an abortion-rights advocate, "strikes the proper balance between the religious beliefs between every health practitioner of this state and the medical obligations of that health practitioner."

But abortion opponents offered an amendment Monday to continue legal immunity for health practitioners "from civil liability or disciplinary action or recrimination by the state . . . for the failure or refusal to refer to a source for any medical procedure that results in artificial insemination, sterilization or termination of pregnancy."

Without that amendment, said Delegate Timothy F. Maloney, D-Prince George's, an abortion opponent, "The bottom line on this is very, very clear: That health care providers . . . are now vulnerable."

The amendment, sponsored by Delegates Maloney and Martha S. Klima, R-Baltimore County, failed, 73-61.

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