Red State is Linda Hirshman's fictional account of an imagined, terrifying but not unthinkable America if Roe v. Wade is overturned. In Chapter Four, Lucy, our heroine may finally be on the road to safety.
As the pro-choice majority of the Supreme Court has dwindled to a few old Justices, legal scholars predict a world eerily like America before the Civil War, with women fleeing anti-abortion states, the authorities a few steps behind.
But there’s nothing like fiction to engage the heart. What would it feel like to live in the world like the one the law professors coldly imagine? Catch up and read Chapters One, Two and Three. Continuing every Tuesday and Friday until the heroine meets her fate, I will publish at this site an installment of her adventures and an imagined, terrifying, but not unthinkable America in the time after Roe.
Old Spice. Her father used to have old spice shaving stuff. Even when he was away, doing polling and stuff, his side of their bed still smelled of Old Spice. Where was the smell coming from? She turned her cheek a little. What was this cloth, rough, yet so cool and smooth? Smelling of her father. From before. Her head hurt so much. What had happened? Was she dead? Was there really heaven? Was she going to see her Dad again if there was heaven? Did they kill her after they raped her? Did you still hurt after you died? That would suck.
She opened her eyes. It was still dark, but could she be dead if she still hurt and still smelled? Had they blinded her after they raped her? Where were they? Why did it smell like her dead father?
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She wiggled her arms. She did not seem to be tied up. But she was surrounded by that strange cloth. Some kind of funeral wrapping? Surely ferals would not treat their victims to death rituals. The bachelor packs were famous for their savagery. Too many men and not enough women. That’s what abortion does. Her stepfather harped endlessly on abortion. Once people could choose the sex of their children, they mostly wanted boys. People always wanted boys – boys got the good jobs, boys supported their old parents especially after Social Security got repealed. If you could only afford one or two children, it made sense to abort the girls and keep the males. Once everyone started doing it, of course, there were too many boys and not enough girls to go around.
Rich men got wives, but the poor ones and the ugly ones, like the three in the bathroom, roamed around in packs looking for unguarded girls to rape. Once you were raped you were hard to marry off, even in a time when girls were scarce. Sometimes your father would marry you to the feral, if he was someone you knew from school or whatever. "Better than no husband at all," Arthur said. "Better to marry than to burn." Arthur was always saying that. Wonder if he made it up.
You’d think with all the police around, cruising the streets making sure everyone was doing what they should, there wouldn’t be much opportunity for the feral gangs. But rape was a crime the new cops didn’t seem to care that much about. It certainly kept her and her friends from roaming around, looking for trouble, as Arthur would say.
"I think she’s waking up." The smell grew stronger. A faint light appeared behind a figure in the doorway. A man in the doorway. Another figure behind. Oh, no, were they back? The light grew stronger. Well he certainly couldn’t be a feral, not with that face. Maybe she was dead; he looked like an angel, if there was such a thing, with his perfect oval face and long black eyelashes over kind brown eyes.
"Can you hear me?" He leaned over her. With the light, she realized she must be in a bed. Sheets, made of some strange material, soft, yet firm and cool. Not a shroud. She tried to nod and briefly blacked out again. She felt a cool dampness on her forehead and opened her eyes.
"Don’t move your head. Just blink if you can hear me."
She blinked and felt her face make a little smile in spite of his injunction.
"You are one lucky girl. We normally make rounds much later after it’s really dark, but one of our people who works at the Union thought he saw someone in the Toyota when he left work, and he celled us. They were all over you when we arrived. Do you remember being raped? It didn’t look like it. We need to treat you if you were. The ferals are dangerous."
He didn’t say it, but at school they whispered "AIDS" whenever they talked about the bachelors.
"I don’t think so." She moved gingerly. "It doesn’t hurt there. Where am I? Who are you?"
A long silence ensued. Then, without a word, he turned and walked out the door of the room.
When he came back, there was a small, middle aged woman with him.
She pulled a chair up to the side of the bed.
"My dear," she said gently, "what were you doing in that garage at sunset?"
Oh God. Who were these people? She thought she was safe for a moment. Didn’t they talk about making rounds? She assumed they were Guides from the Road. Had she made a terrible mistake? Were they the State "counselors?" She looked a little like them, so plain and no makeup or anything. One of them came to school last year to explain to her class why the girls were "graduating" early. They seemed so nice at first. But in the end they would turn her in or at least send her back.
She did not answer.
The woman said nothing.
Time – it seems like about a thousand years – passed.
The woman’s pocket began to play a tune. She grabbed it and pounded on it. Too late. A cell phone. Even though cell phones had been forbidden for a while now, she remembered when they used to play music, and what’s more she knew that song — "It’s Raining Men!" The girls used to sing it in the bathroom before, and a few of the rebellious ones still did. They could not be from Virginia if they had the gay anthem on their cell phone. She began to hum the rest.
"Okay," the man said to the woman with the cell phone. Were you waiting to be picked up?" he said.
She’s in. They really exist. She found them. The Rainbow Road to freedom, a long, multicolored path from Red states to Blue. People whispered about them in the toilet, but no one had ever met one — the legendary Rainbow Guides. Soon she would be gone. Gone from Virginia, gone to Baltimore to live with her friend Joanna. Or to New York. Maybe she could even go back and finish high school. If she could find work, she could send herself to college. Her dad always said she was very smart. She used to get really good grades. She could listen to Car Talk.
She threw up all over herself. The man ran for something, but it was too late. She puked up crackers and cheese from her brother’s house, the candy bars she had taken to tide her over until they came for her, a coke. Vomiting on the sheets in their nice clean bead, retching and retching until nothing was left. Crying and apologizing, her head throbbing from the motion, she finally fell back against the pillow.
They cleaned her up. They did not seem to be mad, but there was a difference in their faces and their voices. And they left without another word. What had she done? Surely they weren’t going to send her back because she dirtied their sheets?
When they returned, they had a sober look.
"What is it?" she said. "I’m so sorry I messed up your beautiful bed. Are you going to send me back?"
"Of course we’re not going to send you back. Not even for linen sheets," the man said in a tone of mild amusement. His voice darkened. "But we can’t move you until we find out if you have a concussion. Throwing up is a symptom of concussion. And we cannot locate the doctor who used to help us. We have nothing to do but wait. If I could have found him, I would have had him examine you hours ago."
That’s okay. She would wait. She would be happy to wait here forever. When they turned on the lamp she saw beautiful drawings on the wall. She never had linen sheets, even if she did barf them up. Who were these people?
Doctors can't treat their patients with leeches; counselors can't impose their beliefs on patients or harm them using discredited methods. Whatever their views, medical professionals have to treat their clients competently.
Whether they’re bakers, florists, or government clerks, those claiming the right to discriminate against LGBTQ people have repeatedly sought to transform professional services into constitutionally protected religious speech. They have grabbed headlines for refusing, for example, to grant marriage licenses to same-sex couples or to make cakes for same-sex couples’ weddings-all in the name of “religious freedom.”
A bit more quietly, however, a handful of counseling students at public universities have challenged their schools’ nondiscrimination and treatment requirements governing clinical placements. In some cases, they have sought a constitutional right to withhold treatment from LGBTQ clients; in others, they have argued for the right to directly impose their religious and anti-gay views on their clients.
There has been some state legislative maneuvering on this front: Tennessee, for instance, recently enacted a thinly veiled anti-LGBTQ measure that would allow counselors to deny service on account of their “sincerely held principles.” But when it comes to the federal Constitution, providing medical treatment—whether bypass surgery, root canal, or mental-health counseling—isn’t advocacy (religious or otherwise) protected by the First Amendment. Counselors are medical professionals; they are hired to help their clients, no matter their race, religion, or sexual orientation, and no matter the counselors’ beliefs. The government, moreover, may lawfully prevent counselors from harming their clients, and universities in particular have an interest, recognized by the U.S. Supreme Court, in preventing discrimination in school activities and in training their students to work with diverse populations.
The plaintiffs in these cases have nonetheless argued that their schools are unfairly and unconstitutionally targeting them for their religious beliefs. But these students are not being targeted, any more than are business owners who must comply with civil rights laws. Instead, their universities, informed by the rules of the American Counseling Association (ACA)—the leading organization of American professional counselors—merely ask that all students learn to treat diverse populations and to do so in accordance with the standard of care. These plaintiffs, as a result, have yet to win a constitutional right to discriminate against or impose anti-LGBTQ views on actual or prospective clients. But cases persist, and the possibility of conflicting court decisions looms.
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The first major challenge to university counseling requirements came from Jennifer Keeton, who hoped to receive a master’s degree in school counseling from Augusta State University. As detailed in the 2011 11th Circuit Court of Appeals decision considering her case, Keeton entered her professional training believing that (1) “sexual behavior is the result of personal choice for which individuals are accountable, not inevitable deterministic forces”; (2) “gender is fixed and binary (i.e., male or female), not a social construct or personal choice subject to individual change”; and “homosexuality is a ‘lifestyle,’ not a ‘state of being.'”
It wasn’t those views alone, however, that sunk her educational plans. The problem, rather, was that Keeton wanted to impose her views on her patients. Keeton had told both her classmates and professors about her clinical approach at a university-run clinic, and it wasn’t pretty:
She would try to change the sexual orientation of gay clients;
If she were counseling a sophomore student in crisis questioning his sexual orientation, she would respond by telling the student that it was not OK to be gay.
If a client disclosed that he was gay, she would tell him that his behavior was wrong and try to change it; if she were unsuccessful, she would refer the client to someone who practices “conversion therapy.”
Unsurprisingly, Keeton also told school officials that it would be difficult for her to work with LGBTQ clients.
Keeton’s approach to counseling not only would have flouted the university’s curricular guidelines, but also would have violated the ACA’s Code of Ethics.
Her conduct would have harmed her patients as well. As a school counselor, Keeton would inevitably have to counsel LGBTQ clients: 57 percent of LGBTQ students have sought help from a school professional and 42 percent have sought help from a school counselor. Suicide is the leading cause of death for LGBTQ adolescents; that’s twice or three times the suicide rate afflicting their heterosexual counterparts. And Keeton’s preferred approach to counseling LGBTQ students would harm them: LGBTQ students rejected by trusted authority figures are even more likely to attempt suicide, and anti-gay “conversion therapy” at best doesn’t work and at worst harms patients too.
Seeking to protect the university’s clinical patients and train her to be a licensed mental health professional, university officials asked Keeton to complete a remediation plan before she counseled students in her required clinical practicum. She refused; the university expelled her. In response, the Christian legal group Alliance Defending Freedom sued on her behalf, claiming that the university violated her First Amendment rights to freedom of speech and the free exercise of religion.
The courts disagreed. The trial court ruled against Keeton, and a panel of the U.S. Court of Appeals for the 11th Circuit unanimously upheld the trial court’s ruling. The 11th Circuit explained that Keeton was expelled not because of her religious beliefs, but rather because of her “own statements that she intended to impose her personal religious beliefs on clients and refer clients to conversion therapy, and her own admissions that it would be difficult for her to work with the GLBTQ population and separate her own views from those of the client.” It was Keeton, not the university, who could not separate her personal beliefs from the professional counseling that she provided: “[F]ar from compelling Keeton to profess a belief or change her own beliefs about the morality of homosexuality, [the university] instructs her not to express her personal beliefs regarding the client’s moral values.”
Keeton, in other words, crossed the line between beliefs and conduct. She may believe whatever she likes, but she may not ignore academic and professional requirements designed to protect her clients—especially when serving clients at a university-run clinic.
As the court explained, the First Amendment would not prohibit a medical school from requiring students to perform blood transfusions in their clinical placements, nor would it prohibit a law school from requiring extra ethics training for a student who “expressed an intent to indiscriminately disclose her client’s secrets or violate another of the state bar’s rules.” Doctors can’t treat their patients with leeches; counselors can’t impose their beliefs on patients or harm them using discredited methods. Whatever their views, medical professionals have to treat their clients competently.
Ward v. Polite
The Alliance Defending Freedom’s follow-up case, Ward v. Polite, sought to give counseling students the right to withhold service from LGBTQ patients and also to practice anti-gay “conversion therapy” on those patients. The case’s facts were a bit murkier, and this led the appeals court to send it to trial; as a result, the student ultimately extracted only a modest settlement from the university. But as in Keeton’s case, the court rejected in a 2012 decision the attempt to give counseling students the right to impose their religious views on their clients.
Julea Ward studied counseling at Eastern Michigan University; like Keeton, she was training to be a school counselor. When she reviewed the file for her third client in the required clinical practicum, she realized that he was seeking counseling about a romantic relationship with someone of the same sex. As the Court of Appeals recounted, Ward did not want to counsel the client about this topic, and asked her faculty supervisor “(1) whether she should meet with the client and refer him [to a different counselor] only if it became necessary—only if the counseling session required Ward to affirm the client’s same-sex relationship—or (2) whether the school should reassign the client from the outset.” Although her supervisor reassigned the client, it was the first time in 20 years that one of her students had made such a request. So Ward’s supervisor scheduled a meeting with her.
Then things went off the rails. Ward, explained the court, “reiterated her religious objection to affirming same-sex relationships.” She told university officials that while she had “no problem counseling gay and lesbian clients,” she would counsel them only if “the university did not require her to affirm their sexual orientation.” She also refused to counsel “heterosexual clients about extra-marital sex and adultery in a values-affirming way.” As for the professional rules governing counselors, Ward said, “who’s the [American Counseling Association] to tell me what to do. I answer to a higher power and I’m not selling out God.”
All this led the university to expel Ward, and she sued. She claimed that the university violated her free speech and free exercise rights, and that she had a constitutional right to withhold affirming therapy relating to any same-sex relationships or different-sex relationships outside of marriage. Like Keeton, Ward also argued that the First Amendment prohibited the university from requiring “gay-affirmative therapy” while prohibiting “reparative therapy.” After factual discovery, the trial court dismissed her case.
On appeal before the U.S. Court of Appeals for the Sixth Circuit, Ward eked out a narrow and temporary win: The court held that the case should go to a jury. Because the university did not have a written policy prohibiting referrals, and based on a few troubling faculty statements during Ward’s review, the court ruled that a reasonable jury could potentially find that the university invoked a no-referrals policy “as a pretext for punishing Ward’s religious views and speech.” At the same time, the court recognized that a jury could view the facts less favorably to Ward and rule for the university.
And although the decision appeared to sympathize with Ward’s desire to withhold service from certain types of clients, the court flatly rejected Ward’s sweeping arguments that she had the right to stray from the school curriculum, refuse to counsel LGBTQ clients, or practice anti-gay “conversion therapy.” For one, it said, “Curriculum choices are a form of school speech, giving schools considerable flexibility in designing courses and policies and in enforcing them so long as they amount to reasonable means of furthering legitimate educational ends.” Thus, the problem was “not the adoption of this anti-discrimination policy, the existence of the practicum class or even the values-affirming message the school wants students to understand and practice.” On the contrary, the court emphasized “the [legal] latitude educational institutions—at any level—must have to further legitimate curricular objectives.”
Indeed, the university had good reason to require counseling students—especially those studying to be school counselors—to treat diverse populations. A school counselor who refuses to counsel anyone with regard to nonmarital, nonheterosexual relationships will struggle to find clients: Nearly four in five Americans have had sex by age 21; more than half have done so by the time they turn 18, while only 6 percent of women and 2 percent of men are married by that age.
In any event, withholding service from entire classes of people violates professional ethical rules even for nonschool counselors. Although the ACA permits client referrals in certain circumstances, the agency’s brief in Ward’s case emphasized that counselors may not refuse to treat entire groups. Ward, in sum, “violated the ACA Code of Ethics by refusing to counsel clients who may wish to discuss homosexual relationships, as well as others who fail to comport with her religious teachings, e.g., persons who engage in ‘fornication.'”
But Ward’s approach would have been unethical even if, in theory, she were permitted to withhold service from each and every client seeking counseling related to nonmarital sex (or even marital sex by same-sex couples). Because in many cases, the need for referral would arise well into the counseling relationship. And as the trial court explained, “a client may seek counseling for depression, or issues with their parents, and end up discussing a homosexual relationship.” No matter what the reason, mid-counseling referrals harm clients, and such referrals are even more harmful if they happen because the counselor disapproves of the client.
Fortunately, Ward did not win the sweeping right to harm her clients or otherwise upend professional counseling standards. Rather, the court explained that “the even-handed enforcement of a neutral policy”—such as the ACA’s ethical rules—”is likely to steer clear of the First Amendment’s free-speech and free-exercise protections.” (Full disclosure: I worked on an amicus brief in support of the university when at Americans United.)
Ward’s lawyers pretended that she won the case, but she ended up settling it for relatively little. She received only $75,000; and although the expulsion was removed from her record, she was not reinstated. Without a graduate counseling degree, she cannot become a licensed counselor.
Cash v. Hofherr
The latest anti-gay counseling salvo comes from Andrew Cash, whose April 2016 lawsuit against Missouri State University attempts to rely on yet murkier facts and could wind up, on appeal, in front of the more conservative U.S. Court of Appeals for the Eighth Circuit. In addition to his range of constitutional claims (freedom of speech, free exercise of religion, equal protection of law), he has added a claim under the Missouri Religious Freedom Restoration Act.
The complaint describes Cash as “a Christian with sincerely-held beliefs”—as opposed to insincere ones, apparently—”on issues of morality.” Cash started his graduate counseling program at Missouri State University in September 2007. The program requires a clinical internship, which includes 240 hours of in-person client contact. Cash decided to do his clinical internship at Springfield Marriage and Family Institute, which appeared on the counseling department’s list of approved sites. Far from holding anti-Christian bias, Cash’s instructor agreed that his proposed class presentation on “Christian counseling and its unique approach and value to the Counseling profession” was an “excellent” idea.
But the presentation itself revealed that Cash intended to discriminate against LGBTQ patients. In response to a question during the presentation, the head of the Marriage and Family Institute stated that “he would counsel gay persons as individuals, but not as couples, because of his religious beliefs,” and that he would “refer the couple for counseling to other counselors he knew who did not share his religious views.” Because discrimination on the basis of sexual orientation violates ACA guidelines, the university determined that Cash should not continue counseling at the Marriage and Family Institute and that it would be removed from the approved list of placements. Cash suggested, however, that he should be able to withhold treatment from same-sex couples.
All this took place in 2011. The complaint (both the original and amended versions) evades precisely what happened between 2012 and 2014, when Cash was finally expelled. You get the sense that Cash’s lawyers at the Thomas More Society are trying to yadda-yadda-yadda the most important facts of the case.
In any event, the complaint does acknowledge that when Cash applied for a new internship, he both ignored the university’s instructions that the previous hours were not supposed to count toward his requirement, and appeared to be “still very much defend[ing] his previous internship stating that there was nothing wrong with it”—thus suggesting that he would continue to refuse to counsel same-sex couples. He continued to defend his position in later meetings with school officials; by November 2014, the university removed him from the program.
Yet in challenging this expulsion, Cash’s complaint says that he was merely “expressing his Christian worldview regarding a hypothetical situation concerning whether he would provide counseling services to a gay/homosexual couple.”
That’s more than just a worldview, though. It also reflects his intent to discriminate against a class of people—in a manner that violates his program’s requirements and the ACA guidelines. Whether hypothetically or otherwise, Cash stated and reiterated that he would withhold treatment from same-sex couples. A law student who stated, as part of his clinic, that he would refuse to represent Christian clients would be announcing his intent to violate the rules of professional responsibility, and the law school could and would remove him from the school’s legal clinic. And they could and would do so even if a Christian client had yet to walk in the door.
But maybe this was just a big misunderstanding, and Cash would, in practice, be willing and able to counsel same-sex couples? Not so, said Cash’s lawyer from the Thomas More Society, speaking about the case to Christian news outlet WORLD: “I think Christians have to go on the offensive, or it’s going to be a situation like Sodom and Gomorrah in the Bible, where you aren’t safe to have a guest in your home, with the demands of the gay mob.” Yikes.
Although Cash seems to want a maximalist decision allowing counselors and counseling students to withhold service from LGBTQ couples, it remains to be seen how the case will turn out. The complaint appears to elide two years’ worth of key facts in order to present Cash’s claims as sympathetically as possible; even if the trial court were to rule in favor of the university after more factual development, Cash would have the opportunity to appeal to the U.S. Court of Appeals for the Eighth Circuit, one of the country’s most conservative federal appeals courts.
More generally, we’re still early in the legal battles over attempts to use religious freedom rights as grounds to discriminate; only a few courts across the country have weighed in. So no matter how extreme Cash or his lawyers may seem, it’s too early to count them out.
* * *
The cases brought by Keeton, Ward, and Cash not only attempt to undermine anti-discrimination policies. They also seek to change the nature of the counselor-client relationship. Current norms provide that a counselor is a professional who provides a service to a client. But the plaintiffs in these cases seem to think that counseling a patient is no different than lecturing a passerby in the town square, in that counseling a patient necessarily involves expressing the counselor’s personal and religious beliefs. Courts have thus far rejected these attempts to redefine the counselor-patient relationship, just as they have turned away attemptsto challengebans on “reparative therapy.”
The principles underlying the courts’ decisions protect more than just LGBTQ clients. As the 11th Circuit explained in Keeton, the university trains students to “be competent to work with all populations, and that all students not impose their personal religious values on their clients, whether, for instance, they believe that persons ought to be Christians rather than Muslims, Jews or atheists, or that homosexuality is moral or immoral.” Licensed professionals are supposed to help their clients, not treat them as prospective converts.
When asked this month about the platform’s opposition to Hyde, Hillary Clinton’s running mate Sen. Tim Kaine (D-VA) said that he had not “been informed of that” change to the platform though he has “traditionally been a supporter of the Hyde Amendment.”
Democrats voted on their party platform Monday, codifying for the first time the party’s stated commitment to repealing restrictions on federal funding for abortion care.
The platform includes a call to repeal the Hyde Amendment, an appropriations ban on federal funding for abortion reimplemented on a yearly basis. The amendment disproportionately affects people of color and those with low incomes.
“We believe unequivocally, like the majority of Americans, that every woman should have access to quality reproductive health care services, including safe and legal abortion—regardless of where she lives, how much money she makes, or how she is insured,” states the Democratic Party platform. “We will continue to oppose—and seek to overturn—federal and state laws and policies that impede a woman’s access to abortion, including by repealing the Hyde Amendment.”
The platform also calls for an end to the Helms Amendment, which ensures that “no foreign assistance funds may be used to pay for the performance of abortion as a method of family planning.”
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Though Helms allows funding for abortion care in cases of rape, incest, and life endangerment, the Obama administration has failed to enforce those guarantees.
Despite the platform’s opposition to the restrictions on abortion care funding, it makes no mention of how the anti-choice measures would be rolled back.
Both presumptive Democratic nominee Hillary Clinton and Sen. Bernie Sanders (I-VT) have promised to address Hyde and Helms if elected. Clinton has said she would “fix the Helms Amendment.”
Speaking at the Iowa Brown and Black Presidential Forum in January, Clinton said that the Hyde Amendment “is just hard to justify because … certainly the full range of reproductive health rights that women should have includes access to safe and legal abortion.” In 2008, Clinton’s campaign told Rewire that she “does not support the Hyde amendment.”
When asked this month about the platform’s opposition to Hyde, Clinton’s running mate Sen. Tim Kaine (D-VA) said in an interview with the Weekly Standard that he had not “been informed of that” change to the platform though he has “traditionally been a supporter of the Hyde amendment.”
“The Hyde amendment and Helms amendment have prevented countless low-income women from being able to make their own decisions about health, family, and future,” NARAL President Ilyse Hogue said in a statement, addressing an early draft of the platform. “These amendments have ensured that a woman’s right to a safe and legal abortion is a right that’s easier to access if you have the resources to afford it. That’s wrong and stands directly in contrast with the Democratic Party’s principles, and we applaud the Party for reaffirming this in the platform.”