No “conscience clause” for health care providers who oppose abortion appears to protect a physician's assistant at a New Mexico clinic from liability for intentionally removing a patient's IUD without her permission.

Sylvia Olona allegedly told the patient, “I personally do not like IUDs. I feel they are a type of abortion” and recommended that she use a “non-abortion” form of contraception such as a depo provera shot or the pill.

In a federal suit filed earlier this month, the patient, Ashley Van Patten, alleges Olona committed a civil battery upon her and violated her “constitutional right to choose her form of contraception.” The complaint also names the Presbyterian Medical Services (PMS) Family Health Center in Rio Rancho, N.M., as a defendant.

A New Mexico law allows a health care provider to “decline to comply with an individual instruction or health-care decision for reasons of conscience.” A Bush Administration “conscience rule” which allows medical personnel to refuse to perform procedures they find morally objectionable took effect Jan. 19, Bush's last day in office.

But if Van Patten's allegations are true, Olona went far beyond the scope of both the state and federal rules by imposing her beliefs on a patient.

“Defendant Olona stated, 'Everyone in the office always laughs and tells me I pull these out on purpose because I am against them, but it’s not true, they accidentally come out when I tug,'” the complaint says.

Van Patten visited the PMS clinic on Jan, 17, 2007 for an adjustment of her IUD. According to the suit, she felt a “sharp pain in her uterus” as Olona performed the procedure and Olona then announced, “Uh oh, I accidentally pulled out your IUD.”

“[H]aving the IUD come out was a good thing,” she allegedly assured Van Patten, going on to express her dislike of the device.

“I don’t know how you feel about abortion, but I am against them,” Olona said. “What the IUD does is take the fertilized egg and pushes it out of the uterus.” Given the choice of “non-abortion” contraception, Van Patten opted for a depo shot.

The suit disputes that the removal of the IUD was accidental -- “The pain Ms. Van Patten felt when Defendant Olona was doing the procedure was consistent with the pain experienced when an[ ] IUD is intentionally removed.” It also accuses PMS of negligently supervising Olona “when it had knowledge of her practice of removing IUDs from patients without their permission.”

The right to choice of contraception derives from such U.S. Supreme Court decisions as Griswold v. Connecticut and Roe v. Wade. Conscience clauses have arisen largely in response to Roe, but protect health care providers who object to performing a procedure –- not those who, as in Olona's case, perform a procedure and allegedly violate a patient's rights while doing so.

Olona is described in the suit as a certified nurse practitioner but the New Mexico Medical Board lists her as a physician's assistant.

By Matthew Heller
1/23/09