Unconscionable Policies, Dangerous Politics

Jodi Jacobson

The HHS provider conscience expansion is just one example of an insidious effort by religious right groups to tip the balance away from patient access to care and toward conscience exemptions without consequences.

Today, in a last gasp action of the Bush Administration the Department
of Health and Human Services (HHS) published regulations dramatically
expanding the right of health care workers to refuse to provide
services, information and referrals to patients seeking procedures,
prescriptions or other forms of care deemed by the provider as
“objectionable.”   Through ambiguous language, the regulations could
deeply undermine long-established principles of medical ethics and
responsibility by, for example, allowing providers to conflate widely
used contraceptive devices, such as birth control pills and
intra-uterine devices, with abortion.  Even by individuals and
institutions receiving federal funding to provide medical care.

Last spring, Congress reauthorized the U.S. Global AIDS Act,
with a budget of $50 billion through 2013.  The act included an
expanded “conscience clause” that allows organizations with “moral or
religious” objections to opt out of engaging in evidence-based
approaches to HIV prevention, treatment and care, and ostensibly to
refuse treatment and care to those whose “lifestyles” or life choices
they might find offensive.  Even by those organizations receiving tens
or hundreds of millions of U.S. taxpayer dollars to end the global AIDS
epidemic.

These laws have more in common than simply the semantics of the terms
“conscience” or “refusal” clause.  Instead, they are part of an
ongoing, insidious and unfortunately increasingly successful effort to
privilege one form of religious “morality” and belief above all others
in a pluralistic society.  Backers of these policies seek to redefine all forms of contraceptive
technology as “abortion,” stigmatize reproductive and sexual health
services of all kinds, marginalize persons whose sexual identities or
livelihoods they deem offensive, and break the social contract between provider and patient.  In doing so, they flout
basic principles of medicine and public health by citing “conscience”
as justification for denying medical care, not just through individual
action but, in the use of federal funding and via application to whole institutions, as a societal ethic.  It is
one thing for private practitioners to decide not to offer certain
kinds of services.  It is another altogether to use your tax dollars to
use vague and sweeping definitions of religion and morality to deny not only a specific service, but
also information and referrals, including in life-threatening
circumstances.  

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Under current U.S. global AIDS law, for example, a group with a “moral
objection” to the notion of “safer sex,” to sex work, or to the sexual identities of men who have sex with
men can deny accurate information on effective prevention or block
access to treatment or care by simply citing “conscience,” all the
while getting funded by the U.S. government to end the HIV/AIDS
epidemic. 

These tactics go beyond what most people think of as “conscientious objection.”  According to the American Civil Liberties Union (ACLU), the HHS rule would allow:

health care individuals and entities to refuse to provide
health care services for any reason whatsoever, including reasons based
on economics or discriminatory motives.

Moreover, these laws also have in common the groups that push for
them.  The United States Conference of Catholic Bishops (USCCB) and the
Family Research Council (FRC) lobbied strenuously for the HHS
regulations.  Saddleback Church joined USCCB, FRC and others to push
for restrictions on prevention programs and expand the “conscience”
clause in the US global AIDS Act.  Not surprisingly, these groups also
lobby for tax dollars to support their programs here and abroad.

Conscientious objection has deep roots in social action and human
rights advocacy and, with respect to medical practice has long been
protected through various federal laws, such as the Church and Weldon Amendments,
and by statutes in at least 46 states.  In addition, virtually all
medical associations have extensive and detailed standards of ethics
and conscience clauses.

Existing rules and regulations seek to balance a physician’s
conscientious objection to performing, for example, an abortion with
the profession’s obligations to afford all patients nondiscriminatory
access.  These principles are recognized even by some religiously
affiliated medical entities that acknowledge their own objections to
providing certain kinds of care but recognize simultaneously their own
responsibilities in referring patients to access care they may need or
want.

Such ethical codes and standards recognize the inherent need to balance
the rights of the individual provider against the rights of the
individual patient and the social interest in promoting public health
and evidenced-based medical care.  As bioethicist Nancy Berlinger of the Hastings Center states:

Conscientious objection in health care always affects
someone else’s health or access to care because the refusal interrupts
the delivery of health services. Therefore, conscientious objection in
health care always has a social dimension and cannot be framed solely
as an issue of individual rights or beliefs.

Public support for maintaining this balance is profoundly clear, as underscored by the results of a 2001 ACLU survey on this issue, which concluded:

This qualitative and quantitative research shows that
Americans overwhelmingly oppose laws that protect religious objectors
at the expense of the patient’s rights and the public health.

The public opposes refusal clauses that threaten access to health care.

89% oppose "allowing insurance companies to refuse to pay for medical services they object to on religious grounds."

88% oppose "allowing pharmacies to refuse to fill prescriptions they object to on religious grounds."

86% oppose "allowing employers to refuse to provide their employees
with health insurance coverage for medical services the employer
objects to on religious grounds."

[and]

76% oppose "allowing [hospitals] to refuse to provide medical services they object to on religious grounds."

By changing the terms of "conscience," the social contract balancing providers’ and
patients’ rights is broken, in part because these actions come without
a price to the so-called objector.  In a 2005 article, bioethicist Alta Charo quotes Mahatma Gandhi and Martin Luther King, Jr. in stating that:

“in matters of conscience, the law of majority has no
place,” [but] acts of conscience are usually accompanied by a
willingness to pay some price.  Martin Luther King, Jr. argued, “An
individual who breaks a law that conscience tells him is unjust, and
who willingly accepts the penalty of imprisonment in order to arouse
the conscience of the community over its injustice, is in reality
expressing the highest respect for law.”

But, as she points out, quoting Boston Globe columnist Ellen Goodman:

What differentiates the latest round of battles of
conscience clauses from those fought by Gandhi and King is the claim of
entitlement to “conscience without consequence.”

The consequences are however crystal clear and are felt by the person denied information, service or care.  Medical and public health
professionals and the public writ large have found consensus around
services, information, and methods of medical care that should be
widely available.  When individuals or groups are denied access, the
consequences are immediate and the harms directly proportional to the
level of economic and social disparity that limits access by
individuals to the care they want and need.  Those harms are found
abundantly in high rates of unintended pregnancies due to lack of
access to contraception among economically and socially disadvantaged
teens, and high rates of HIV infection among women, especially
African-American women in the United States and women generally in
countries throughout Africa and Asia.

In the end, the actions by a few to rewrite the laws of conscience and
society are not just about a single law or policy, but a collective
effort to undermine a social contract on which much of our healthcare
is based.  As numerous analysts have pointed out, there are ample
opportunities for the Obama Administration—through Executive and
Congressional action—to get rid of these specific and onerous
regulations.  But to declare success and stop there will be to win the
battle and lose the war.  These fights are as much about culture and
definition, about civil society action, vigilance and accountability on
an ongoing basis as they are about the law.  And this particular fight
may well become increasingly pitched as we move toward health care
reform in the United States. 

We have to recognize that legal and policy challenges are critical but
they are not enough.  Those who believe in balancing provider’s rights
with patients needs and rights must be forceful and proactive in
putting the door back on its hinges, and that will take require
proactive conversation and mobilization, starting now.

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.

Culture & Conversation Media

Filmmaker Tracy Droz Tragos Centers Abortion Stories in New Documentary

Renee Bracey Sherman

The film arrives at a time when personal stories are center stage in the national conversation about abortion, including in the most recent Supreme Court decision, and rightly so. The people who actually have and provide abortions should be driving the narrative, not misinformation and political rhetoric.

This piece is published in collaboration with Echoing Ida, a Forward Together project.

A new film by producer and director Tracy Droz Tragos, Abortion: Stories Women Tell, profiles several Missouri residents who are forced to drive across the Mississippi River into Illinois for abortion care.

The 93-minute film features interviews with over 20 women who have had or are having abortions, most of whom are Missouri residents traveling to the Hope Clinic in Granite City, Illinois, which is located about 15 minutes from downtown St. Louis.

Like Mississippi, North Dakota, South Dakota, and Wyoming, Missouri has only one abortion clinic in the entire state.

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The women share their experiences, painting a more nuanced picture that shows why one in three women of reproductive age often seek abortion care in the United States.

The film arrives at a time when personal stories are center stage in the national conversation about abortion, including in the most recent U.S. Supreme Court decision, and rightly so. The people who actually have and provide abortions should be driving the narrative, not misinformation and political rhetoric. But while I commend recent efforts by filmmakers like Droz Tragos and others to center abortion stories in their projects, these creators still have far to go when it comes to presenting a truly diverse cadre of storytellers if they really want to shift the conversation around abortion and break down reproductive stigma.

In the wake of Texas’ omnibus anti-abortion law, which was at the heart of the Whole Woman’s Health v. Hellerstedt Supreme Court case, Droz Tragos, a Missouri native, said in a press statement she felt compelled to document how her home state has been eroding access to reproductive health care. In total, Droz Tragos interviewed 81 people with a spectrum of experiences to show viewers a fuller picture of the barriersincluding legislation and stigmathat affect people seeking abortion care.

Similar to HBO documentaries about abortion that have come before it—including 12th & Delaware and Abortion: Desperate ChoicesAbortion: Stories Women Tell involves short interviews with women who are having and have had abortions, conversations with the staff of the Hope Clinic about why they do the work they do, interviews with local anti-choice organizers, and footage of anti-choice protesters shouting at patients, along with beautiful shots of the Midwest landscape and the Mississippi River as patients make road trips to appointments. There are scenes of clinic escorts holding their ground as anti-choice protesters yell Bible passages and obscenities at them. One older clinic escort carries a copy of Living in the Crosshairs as a protester follows her to her car, shouting. The escort later shares her abortion story.

One of the main storytellers, Amie, is a white 30-year-old divorced mother of two living in Boonville, Missouri. She travels over 100 miles each way to the Hope Clinic, and the film chronicles her experience in getting an abortion and follow-up care. Almost two-thirds of people seeking abortions, like Amie, are already a parent. Amie says that the economic challenges of raising her other children make continuing the pregnancy nearly impossible. She describes being physically unable to carry a baby and work her 70 to 90 hours a week. Like many of the storytellers in the film, Amie talks about the internalized stigma she’s feeling, the lack of support she has from loved ones, and the fear of family members finding out. She’s resilient and determined; a powerful voice.

The film also follows Kathy, an anti-choice activist from Bloomfield, Missouri, who says she was “almost aborted,” and that she found her calling in the anti-choice movement when she noticed “Anne” in the middle of the name “Planned Parenthood.” Anne is Kathy’s middle name.

“OK Lord, are you telling me that I need to get in the middle of this?” she recalls thinking.

The filmmakers interview the staff of the Hope Clinic, including Dr. Erin King, a pregnant abortion provider who moved from Chicago to Granite City to provide care and who deals with the all-too-common protesting of her home and workplace. They speak to Barb, a talkative nurse who had an abortion 40 years earlier because her nursing school wouldn’t have let her finish her degree while she was pregnant. And Chi Chi, a security guard at the Hope Clinic who is shown talking back to the protesters judging patients as they walk into the clinic, also shares her abortion story later in the film. These stories remind us that people who have abortions are on the frontlines of this work, fighting to defend access to care.

To address the full spectrum of pregnancy experiences, the film also features the stories of a few who, for various reasons, placed their children for adoption or continued to parent. While the filmmakers interview Alexis, a pregnant Black high school student whose mother died when she was 8 years old, classmates can be heard in the distance tormenting her, asking if she’s on the MTV reality show 16 and Pregnant. She’s visibly distraught and crying, illustrating the “damned if you do, damned if you don’t” conundrum women of color experiencing unintended pregnancy often face.

Te’Aundra, another young Black woman, shares her story of becoming pregnant just as she received a college basketball scholarship. She was forced to turn down the scholarship and sought an adoption, but the adoption agency refused to help her since the child’s father wouldn’t agree to it. She says she would have had an abortion if she could start over again.

While anti-choice rhetoric has conflated adoption as the automatic abortion alternative, research has shown that most seeking adoption are personally debating between adoption and parenting. This is illustrated in Janet’s story, a woman with a drug addiction who was raising one child with her partner, but wasn’t able to raise a second, so she sought an adoption. These stories are examples of the many societal systems failing those who choose adoption or students raising families, in addition to those fighting barriers to abortion access.

At times, the film feels repetitive and disjointed, but the stories are powerful. The range of experiences and reasons for having an abortion (or seeking adoption) bring to life the data points too often ignored by politicians and the media: everything from economic instability and fetal health, to domestic violence and desire to finish an education. The majority of abortion stories featured were shared by those who already had children. Their stories had a recurring theme of loneliness and lack of support from their loved ones and friends at a time when they needed it. Research has shown that 66 percent of people who have abortions tend to only tell 1.24 people about their experience, leaving them keeping a secret for fear of judgment and shame.

While many cite financial issues when paying for abortions or as the reason for not continuing the pregnancy, the film doesn’t go in depth about how the patients come to pay for their abortions—which is something my employer, the National Network for Abortion Funds (NNAF), directly addresses—or the systemic issues that created their financial situations.

However, it brings to light the hypocrisy of our nation, where the invisible hand of our society’s lack of respect for pregnant people and working parents can force people to make pregnancy decisions based on economic situations rather than a desire to be pregnant or parent.

“I’m not just doing this for me” is a common phrase when citing having an abortion for existing or future children.

Overall, the film is moving simply because abortion stories are moving, especially for audiences who don’t have the opportunity to have someone share their abortion story with them personally. I have been sharing my abortion story for five years and hearing someone share their story with me always feels like a gift. I heard parts of my own story in those shared; however, I felt underrepresented in this film that took place partly in my home state of Illinois. While people of color are present in the film in different capacities, a racial analysis around the issues covered in the film is non-existent.

Race is a huge factor when it comes to access to contraception and reproductive health care; over 60 percent of people who have abortions are people of color. Yet, it took 40 minutes for a person of color to share an abortion story. It seemed that five people of color’s abortion stories were shown out of the over 20 stories, but without actual demographic data, I cannot confirm how all the film’s storytellers identify racially. (HBO was not able to provide the demographic data of the storytellers featured in the film by press time.)

It’s true that racism mixed with sexism and abortion stigma make it more difficult for people of color to speak openly about their abortion stories, but continued lack of visual representation perpetuates that cycle. At a time when abortion storytellers themselves, like those of NNAF’s We Testify program, are trying to make more visible a multitude of identities based on race, sexuality, immigration status, ability, and economic status, it’s difficult to give a ringing endorsement of a film that minimizes our stories and relegates us to the second half of a film, or in the cases of some of these identities, nowhere at all. When will we become the central characters that reality and data show that we are?

In July, at the progressive conference Netroots Nation, the film was screened followed by an all-white panel discussion. I remember feeling frustrated at the time, both because of the lack of people of color on the panel and because I had planned on seeing the film before learning about a march led by activists from Hands Up United and the Organization for Black Struggle. There was a moment in which I felt like I had to choose between my Blackness and my abortion experience. I chose my Black womanhood and marched with local activists, who under the Black Lives Matter banner have centered intersectionality. My hope is that soon I won’t have to make these decisions in the fight for abortion rights; a fight where people of color are the backbone whether we’re featured prominently in films or not.

The film highlights the violent rhetoric anti-choice protesters use to demean those seeking abortions, but doesn’t dissect the deeply racist and abhorrent comments, often hurled at patients of color by older white protesters. These racist and sexist comments are what fuel much of the stigma that allows discriminatory laws, such as those banning so-called race- and sex-selective abortions, to flourish.

As I finished the documentary, I remembered a quote Chelsea, a white Christian woman who chose an abortion when her baby’s skull stopped developing above the eyes, said: “Knowing you’re not alone is the most important thing.”

In her case, her pastor supported her and her husband’s decision and prayed over them at the church. She seemed at peace with her decision to seek abortion because she had the support system she desired. Perhaps upon seeing the film, some will realize that all pregnancy decisions can be quite isolating and lonely, and we should show each other a bit more compassion when making them.

My hope is that the film reaches others who’ve had abortions and reminds them that they aren’t alone, whether they see themselves truly represented or not. That we who choose abortion are normal, loved, and supported. And that’s the main point of the film, isn’t it?

Abortion: Stories Women Tell is available in theaters in select cities and will be available on HBO in 2017.

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