GRANITE CITY, Ill. — Nathan Niebling thinks the local Catholic hospital should be able to get rid of a staff doctor who performs abortions elsewhere.

Niebling is no expert on hospitals, but he is a Catholic and thinks that the pro-life decision should be simple enough.

The manager of a Meineke Discount Mufflers near St. Elizabeth Medical Center, said, “I would think that any business has a right to assume for its employees a code of ethics — especially a religious institution.”

But it's more complicated then that, says St. Elizabeth hospital. Federal law requires the hospital to keep Dr. Yogendra Shah on staff.

When the hospital brought Shah into their obstetrics and gynecology department over 25 years ago, they had no idea that years later he would be moonlighting as the top abortionist at the Hope Clinic for Women, an abortion business across the street. The business advertises abortions up to 24 weeks. Allison Hoyle, spokeswoman for the Hope Clinic, refused to comment.

Shah's fox-in-the-henhouse situation grabbed December headlines when Internet news services reported that in the fall, Shah had been given a high position at St. Elizabeth. Some reports erroneously stated that he was chief of staff or “top doc” at the hospital; in fact, he had been named interim chief of staff of his department.

The hospital refused to comment for this article, but referred to a statement issued Dec. 7 by the Diocese of Springfield. The statement claimed that the hospital's bylaws required that the chief be the most senior doctor in the department. The most senior doctor in OB-GYN was Shah.

The diocese noted that Shah has been removed from that post. Dr. Dennis Hurford is now department chief. Moreover, the diocese said, Shah “was not paid for the position nor was he given any awards for community service, etc., routinely given to other physicians in similar positions.”

But why was an abortionist on staff at all?

Said the statement, “In 1995, St. Elizabeth Medical Center discovered that Dr. Shah was performing abortion procedures” at the Hope Clinic.

At that time, the hospital consulted its attorneys and investigated the possibility of removing Shah from its staff, the diocese said. But then they read 42 US Code 300a-7.

That law was intended to protect pro-life doctors, nurses and hospital employees. It says that no hospital, doctor or hospital employee can be required to perform abortions or sterilizations, and no hospital can be required to perform these procedures. However, the flip side of the coin is that no hospital can revoke a physician's staff privileges because he performs abortions or sterilizations at another location.

Stuck With You?

Some, like Angela Michael, believe that the hospital should disregard the legal barrier. Michael, who for seven years has been going to the Hope Clinic to protest, said, “They should get rid of him and take the chance of a lawsuit. They're going by man's law” rather than God's.

In October, Bishop George Lucas led a rosary walk to the abortion business. Pro-life picketers outside the Hope Clinic accused the bishop and the hospital of allowing scandal by keeping Shah on staff. One angry protester began yelling that the bishop and the hospital were “Pharisees and scribes.”

The diocese's statement warns, however, that if the hospital provokes a lawsuit the results might have far-reaching consequences.

“Diocesan and hospital legal consultants have concluded that to protest the law that protects Dr. Shah … would be provoking litigation that might endanger the legal right of Catholic hospitals to refuse to perform abortions.”

In other words, the diocese is worried that if the hospital kicks Shah off its staff and he sues, a resulting lawsuit might lead to the entire “conscience clause” law being overturned, leaving pro-life hospitals and physicians vulnerable.

A Way Out?

But Richard Myers, a professor at Ave Maria School of Law, said that St. Elizabeth would have “a pretty good argument” for getting rid of Shah, based on the Religious Freedom Restoration Act of 1993.

The act made it harder for legislatures to justify passing laws that infringed on religious practices. Although the Supreme Court overturned the act with regard to state and local law, Myers pointed out that it probably still stands with regard to federal law like the “conscience clause.”

Myers added that the hospital might also be wary of provoking a legislative backlash.

In his 1998 address to the bishops of California, Hawaii and Nevada on their five-yearly visit to the Vatican, Pope John Paul II urged U.S. bishops to defend the right-to-life, particularly where hospitals are concerned.

“Dear brother bishops,” he concluded, “Catholic moral teaching is an essential part of our heritage of faith; we must see to it that it is faithfully transmitted, and take appropriate measures to guard the faithful from the deceit of opinions which dissent from it. Although the Church often appears as a sign of contradiction, in defending the whole moral law firmly and humbly she is upholding truths which are indispensable for the good of humanity and for the safeguarding of civilization itself.

“Our teaching must be clear; it must recognize the drama of the human condition, in which we all struggle with sin and in which we must all strive, with the help of grace, to embrace the good” (No. 7).

St. Elizabeth's supporters point to the crisis pregnancy center housed in a trailer on hospital property. The center provides diapers, formula and other baby supplies. Connie Balen, a volunteer at the center, said that St. Elizabeth had always strongly supported its work. St. Elizabeth provides maintenance, security, and electric lighting for the center.

The hospital also performs free pregnancy tests on women who come to the center. “This was the hospital's effort to counteract the [abortion] clinic,” Balen said.Thomas D. Kennedy, chair of the philosophy department at Valparaiso University, said that the hospital should “take some action to dissociate themselves from” Shah.

If, as the diocese's statement says, removing Shah could damage protections for pro-life physicians, Kennedy counseled “other legal alternatives” such as buying out Shah's contract. He acknowledged the financial cost to the hospital, but said, “There's a high moral cost” to keeping Shah on staff.

Kennedy said, “It may be the case that the best approach would be for patients who enter the hospital to be made aware of this, and be given the option of some other physician, so patients can vote with their feet.” He said that knowledge of Shah's abortion practice would enable patients to make “an informed decision.”.

One potential patient, Paula Roberts, a stylist at the nearby Earl's Coiffures, said, “I don't see why” Shah's job at the Hope Clinic should matter to patients at St. Elizabeth.

But Kathie Sass, spokeswoman for the diocese, said, “I would not want my personal physician to be a known abortionist. I would want to put my health and the health of my family in the hands of someone who has the same fundamental values.”