Conscience Clauses: Justifying Bigotry On Religious Grounds

Pamela Merritt

The thought of people refusing to serve a person of color due to their personal objection to desegregation is now considered indefensible, but refusal of service due to personal religious objections is not a thing of the past.

When I think of refusal of
services the first thing that comes to mind is a story my mother told
me from her childhood when a restaurant in Mississippi refused to seat
her family based on legal racial segregation.  She was a young
child but the memory stuck with her and she shared the story with me
to explain that there was a time when inequality was protected by law
and how that inequality had an impact on her life.  She made certain
to point out that many segregationists justified their bigotry based
on religious grounds. 

The thought of people refusing to serve
a person of color due to their personal objection to desegregation is
now considered indefensible and a violation of the law, but refusal
of service due to personal religious objections is not a thing of the
past.  Pharmacists in Washington State can refuse to fill prescriptions,
for example a prescription for Plan B, if they feel that doing so conflicts
with their religious beliefs.  Pharmacy refusal and refusals of
service are threats to the rights and health of women and defending
against those threats and the erosion of rights that they represent
is a crucial front in the reproductive justice struggle.   

Like most people, I thought
that getting a prescription filled was a simple process.  A person
goes to their doctor, gets a prescription, drops it off at a pharmacy
and the pharmacist fills it.  The idea that an insurer would refuse
to cover, a doctor would refuse to prescribe or a pharmacist would refuse
to fill that prescription on religious grounds and that her or his refusal
would be protected by law never crossed my mind until my home state
of Missouri’s legislature entertained a bill containing protections
for pharmacies earlier this year.  As Amanda Marcotte explored
in her piece Freedom’s
Just Another Word for Punishing Women
,
pharmacy refusal is a key anti-choice tool that has less to do with
protecting religious freedom than protecting misogyny and forcing women
to bend to the will of the religious right.   

So how did this happen? 
Shortly after the landmark Roe v. Wade decision in 1973, Congress passed
the Church Amendment

that allows healthcare providers to cite religious grounds in order
to refuse to provide services.  Specifically, the Church Amendment
prevents the government, as a condition of a federal grant, from requiring
healthcare providers to perform or assist in abortion or sterilization
procedures against their moral or religious convictions. It also prevents
institutions receiving certain federal funds from taking action against
personnel because of their participation, nonparticipation or beliefs
about abortion or sterilization. Within five years of passage of the
Church Amendment, the majority of states adopted refusal clauses and
refusal clauses have been extended to include assisted reproductive
technologies, contraception and emergency contraception, human embryonic
or fetal research, in vitro fertilization, and stem cell research.  

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That brings us to the example
of Washington State, where pharmacists can refuse to fill prescriptions
if they feel that doing so conflicts with their religious beliefs. 
On April 12, 2007, the
Washington State Pharmacy Board adopted rules

requiring pharmacies to ensure that patients are able to get prescriptions
filled on site and in a timely manner.  The rules require pharmacies
to dispense all lawfully prescribed drugs and devices, clarifying that
a pharmacist’s personal and/or moral judgments have no place at the
pharmacy counter. On September 27th, 2007, a judge presiding over a
pharmacy refusal lawsuit issued a preliminary order preventing those
rules requiring pharmacies to fill all lawful prescriptions without
discrimination or delay from taking effect.  As The Northwest Women’s
Law Center
pointed
out in their statement about the ruling, the rules were adopted to promote
the health of Washingtonians and the ruling preventing those rules from
being applied put the health of all Washington residents at risk. 
Sarah Dunne, legal Director of the ACLU of Washington, pointed out in a
statement issued shortly after the prevention ruling
that "The Pharmacy Board rules
strike the appropriate balance between patients’ rights of access to
medication and pharmacists’ individual rights. We hope the court ultimately
will recognize this and reinstate the rules." 

Access to reproductive healthcare
is being denied on religious grounds through refusals to cover prescriptions
too.  One key question is whether a healthcare insurance provider
can refuse to cover services on religious grounds if they receive federal
funds.  Catholics
for Choice

(CFC) approached that question from the angle of the Catholic healthcare
system and its impact on reproductive healthcare.  Some Catholic
HMOs receive payment for services from federal programs like Medicaid,
which mandates a provision of family planning services.  In their
report Catholic
HMOs and Reproductive Health Care
,
CFC explored the growth of Catholic managed care and the question of
refusal of services and found that, of the 48 Catholic managed care
plans CFC identified serving some 2.5 million Americans, 25 (representing
52% of all the Catholic plans identified) are providing contraceptive
coverage for enrollees and some of those specify that they will only
cover oral contraception.  

The public policy implications
are clear, since coverage is a key factor in access to reproductive
healthcare and federal mandates should protect that access.  But
the CFC report found that there are few formal regulations that require
health plans that refuse to provide family planning services to disclose
this clearly on marketing and enrollment materials.  As a result,
employers may select a plan and have no idea that it limits or denies
access to reproductive healthcare due to a lack of coverage.  Employees
would then be left to seek reproductive healthcare elsewhere and shoulder
the additional costs or go without that healthcare entirely. 

It’s not as if there aren’t
ways to balance individual freedoms.  In their report, CFC identified
several methods that Catholic healthcare plans may use to make reproductive
health services available to enrollees without compromising their organizations
beliefs. The key element is distancing the Catholic plan from the direct
provision of and/or direct payment for forbidden services.  The
Catholic plan can contract with non-Catholic providers, such as another
hospital or clinic, to provide the services.  They could also arrange
for the money they receive from enrollees or their employers that goes
to pay for reproductive health services to go through third-party. 
Or a Catholic plan may arrange for another insurer to handle payment
and provision of reproductive health services. 

So let’s rewind to my earlier
exploration of going to the doctor, getting a prescription then going
to the pharmacy and getting that prescription filled – things clearly
aren’t as simple as they initially appeared to be.  A woman may
be denied access as a result of her healthcare insurance provider’s
refusal of coverage, she may have a doctor refuse to treat her or she
may actually make it to the pharmacy only to find that the pharmacist
refuses to fill the prescription on religious grounds.  And access
to reproductive healthcare looks more like a grueling obstacle course
where the game is based on luck and chance than a protected freedom. 

Commentary Contraception

Hillary Clinton Played a Critical Role in Making Emergency Contraception More Accessible

Susan Wood

Today, women are able to access emergency contraception, a safe, second-chance option for preventing unintended pregnancy in a timely manner without a prescription. Clinton helped make this happen, and I can tell the story from having watched it unfold.

In the midst of election-year talk and debates about political controversies, we often forget examples of candidates’ past leadership. But we must not overlook the ways in which Hillary Clinton demonstrated her commitment to women’s health before she became the Democratic presidential nominee. In early 2008, I wrote the following article for Rewirewhich has been lightly edited—from my perspective as a former official at the U.S. Food and Drug Administration (FDA) about the critical role that Clinton, then a senator, had played in making the emergency contraception method Plan B available over the counter. She demanded that reproductive health benefits and the best available science drive decisions at the FDA, not politics. She challenged the Bush administration and pushed the Democratic-controlled Senate to protect the FDA’s decision making from political interference in order to help women get access to EC.

Since that time, Plan B and other emergency contraception pills have become fully over the counter with no age or ID requirements. Despite all the controversy, women at risk of unintended pregnancy finally can get timely access to another method of contraception if they need it—such as in cases of condom failure or sexual assault. By 2010, according to National Center for Health Statistics data, 11 percent of all sexually experienced women ages 15 to 44 had ever used EC, compared with only 4 percent in 2002. Indeed, nearly one-quarter of all women ages 20 to 24 had used emergency contraception by 2010.

As I stated in 2008, “All those who benefited from this decision should know it may not have happened were it not for Hillary Clinton.”

Now, there are new emergency contraceptive pills (Ella) available by prescription, women have access to insurance coverage of contraception without cost-sharing, and there is progress in making some regular contraceptive pills available over the counter, without prescription. Yet extreme calls for defunding Planned Parenthood, the costs and lack of coverage of over-the-counter EC, and refusals by some pharmacies to stock emergency contraception clearly demonstrate that politicization of science and limits to our access to contraception remain a serious problem.

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Today, women are able to access emergency contraception, a safe, second chance option for preventing unintended pregnancy in a timely manner without a prescription. Sen. Hillary Clinton (D-NY) helped make this happen, and I can tell the story from having watched it unfold.

Although stories about reproductive health and politicization of science have made headlines recently, stories of how these problems are solved are less often told. On August 31, 2005 I resigned my position as assistant commissioner for women’s health at the Food and Drug Administration (FDA) because the agency was not allowed to make its decisions based on the science or in the best interests of the public’s health. While my resignation was widely covered by the media, it would have been a hollow gesture were there not leaders in Congress who stepped in and demanded more accountability from the FDA.

I have been working to improve health care for women and families in the United States for nearly 20 years. In 2000, I became the director of women’s health for the FDA. I was rather quietly doing my job when the debate began in 2003 over whether or not emergency contraception should be provided over the counter (OTC). As a scientist, I knew the facts showed that this medication, which can be used after a rape or other emergency situations, prevents an unwanted pregnancy. It does not cause an abortion, but can help prevent the need for one. But it only works if used within 72 hours, and sooner is even better. Since it is completely safe, and many women find it impossible to get a doctor’s appointment within two to three days, making emergency contraception available to women without a prescription was simply the right thing to do. As an FDA employee, I knew it should have been a routine approval within the agency.

Plan B emergency contraception is just like birth control pills—it is not the “abortion pill,” RU-486, and most people in the United States don’t think access to safe and effective contraception is controversial. Sadly, in Congress and in the White House, there are many people who do oppose birth control. And although this may surprise you, this false “controversy” not only has affected emergency contraception, but also caused the recent dramatic increase in the cost of birth control pills on college campuses, and limited family planning services across the country.  The reality is that having more options for contraception helps each of us make our own decisions in planning our families and preventing unwanted pregnancies. This is something we can all agree on.

Meanwhile, inside the walls of the FDA in 2003 and 2004, the Bush administration continued to throw roadblocks at efforts to approve emergency contraception over the counter. When this struggle became public, I was struck by the leadership that Hillary Clinton displayed. She used the tools of a U.S. senator and fought ardently to preserve the FDA’s independent scientific decision-making authority. Many other senators and congressmen agreed, but she was the one who took the lead, saying she simply wanted the FDA to be able to make decisions based on its public health mission and on the medical evidence.

When it became clear that FDA scientists would continue to be overruled for non-scientific reasons, I resigned in protest in late 2005. I was interviewed by news media for months and traveled around the country hoping that many would stand up and demand that FDA do its job properly. But, although it can help, all the media in the world can’t make Congress or a president do the right thing.

Sen. Clinton made the difference. The FDA suddenly announced it would approve emergency contraception for use without a prescription for women ages 18 and older—one day before FDA officials were to face a determined Sen. Clinton and her colleague Sen. Murray (D-WA) at a Senate hearing in 2006. No one was more surprised than I was. All those who benefited from this decision should know it may not have happened were it not for Hillary Clinton.

Sometimes these success stories get lost in the “horse-race stories” about political campaigns and the exposes of taxpayer-funded bridges to nowhere, and who said what to whom. This story of emergency contraception at the FDA is just one story of many. Sen. Clinton saw a problem that affected people’s lives. She then stood up to the challenge and worked to solve it.

The challenges we face in health care, our economy, global climate change, and issues of war and peace, need to be tackled with experience, skills and the commitment to using the best available science and evidence to make the best possible policy.  This will benefit us all.

Analysis Law and Policy

Federal Court Says Trans Worker Can Be Fired Based on Owner’s Religious Beliefs

Jessica Mason Pieklo

“Plain and simple, this is just discrimination against a person because of who she is,” said John Knight, the director of the LGBT and HIV Project of the American Civil Liberties Union of Illinois, in an interview with Rewire.

When the U.S. Supreme Court ruled in 2014 in Burwell v. Hobby Lobby that the owners of secular for-profit businesses could challenge laws they believed infringed on their religious liberties, civil rights advocates warned that the decision was just the start of a new wave of litigation. On Thursday, those predictions came true: A federal district judge in Michigan ruled that a funeral home owner could fire a transgender worker simply for being transgender.

The language of the opinion is sweeping, even if the immediate effect of the decision is limited to the worker, Aimee Stephens, and her boss. And that has some court-watchers concerned.

“Plain and simple, this is just discrimination against a person because of who she is,” said John Knight, the director of the LGBT and HIV Project of the American Civil Liberties Union of Illinois, in an interview with Rewire.

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According to court documents, Stephens, an employee at Detroit’s R.G. & G.R. Funeral Homes, gave her boss—the business’ owner—a letter in 2013 explaining she was undergoing a gender transition. As part of her transition, she told her employer that she would soon start to present as a woman, including dressing in appropriate business attire at work that was consistent both with her identity and the company’s sex-segregated dress code policy.

Two weeks later, Stephens was fired after being told by her boss that what she was “proposing to do” was unacceptable and offensive to his religious beliefs.

In September 2014, the Equal Employment Opportunity Commission (EEOC) filed a lawsuit on behalf of Stephens, arguing the funeral home had violated Title VII of the federal Civil Rights Act, which prohibits employment discrimination. According to the EEOC, Stephens was unlawfully fired in violation of Title VII “because she is transgender, because she was transitioning from male to female, and/or because she did not conform to the employer’s gender-based expectations, preferences, or stereotypes.”

Title VII of the Civil Rights Act allows those employees who have been discriminated against in the workplace to collect money, known as civil damages. Those damages usually come in the form of lost wages, back pay, and funds to make up for—to some degree—the abuse the employee faced on the job. They are also designed to make employers more vigilant about their workplace culture. Losing an employment discrimination case for an employer can be expensive.

But attorneys representing Stephens’ employer argued that the Religious Freedom Restoration Act (RFRA) protected their client from legal liability for firing Stephens. On Thursday, a federal court agreed. It said that paying such damages for unlawfully discriminating against an employee could amount to a substantial burden on an employer’s religious beliefs. 

According to the court, despite the fact that Stephens’ boss admitted he fired her for transitioning, and despite the fact that the court found this admission to be direct evidence of employment discrimination, RFRA can be a defense against that direct discrimination. To use that defense, the court concluded, all the funeral home owner had to do was assert that his religious beliefs embraced LGBTQ discrimination. The funeral home had “met its initial burden of showing that enforcement of Title VII, and the body of sex-stereotyping case law that has developed under it, would impose a substantial burden on its ability to conduct business in accordance with its sincerely-held religious beliefs,” the court wrote.

In other words, Hobby Lobby provides employers a defense to discriminating against LGBTQ people on the basis of religious beliefs.

“The RFRA analysis is extremely troubling, and the implications of it [are] as well,” said Knight. “I believe this is the first case applying RFRA to a Title VII claim with respect to nonministerial employees.”

If the scope of the opinion were broader, Knight continued, “this would allow [employers in general] to evade and refuse to comply with uniform nondiscrimination law because of their religious views.”

This, Knight said, is what advocates were afraid of in the wake of Hobby Lobby: “It is the concern raised by all of the liberal justices in the dissent in Hobby Lobby, and it is what the majority in Hobby Lobby said the decision did not mean. [That majority] said it did not mean the end of enforcement of nondiscrimination laws.”

And yet that is exactly what we are seeing in this decision, Knight said.

According to court documents, Stephens’ boss has been a Christian for more than 65 years and testified that he believes “the Bible teaches that God creates people male or female,” that “the Bible teaches that a person’s sex is an immutable God-given gift, and that people should not deny or attempt to change their sex.” For Stephens’ former boss, Stephens’ transition to a woman was “denying” her sex. Stephens had to be fired, her boss testified, so that he would not be directly complicit in supporting the idea that “sex is a changeable social construct rather than an immutable God-given gift.”

If the “complicit in denying God’s will” sounds familiar, it should. It has been the exact argument used by businesses challenging the birth control benefit of the Affordable Care Act. Those business owners believe contraception is contrary to God’s will and that complying with federal law, which says birth control should be treated in insurance policies as any other preventive service, makes them complicit in sin. Thursday’s decision cites Hobby Lobby directly to support the court’s conclusion that complying with federal nondiscrimination law can be avoided by asserting a religious objection.

Think of the implications, should other courts follow this lead. Conservatives have, in the past, launched religious objections to child labor laws, the minimum wage, interracial marriage, and renting housing to single parents—to name a few. Those early legal challenges were unsuccessful, in part because they were based on constitutional claims. Hobby Lobby changed all that, opening the door for religious conservatives to launch all kinds of protests against laws they disagree with.

And though the complaint may be framed as religious objections to birth control, to LGBTQ people generally, and whatever other social issue that rankles conservatives, these cases are so much more than that. They are about corporate interests trying to evade regulations that both advance social equity and punish financially those businesses that refuse to follow the law. Thursday’s opinion represents the next, troubling evolution of that litigation.

CORRECTION: This article has been updated to clarify John Knight’s position with the American Civil Liberties Union of Illinois.

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