Roundup: White House Wants Contraceptive Funding Dropped from Stimulus Plan

Emily Douglas

Obama wants family planning out of the stimulus; Pill inventor sets the record straight on demographic shifts; Vatican condemns repeal of the global gag rule; economic downturn drives interest in egg donation.

Obama Asks Congressional Democrats to Remove Contraceptive Provisions from the Stimulus

Big news of the morning: The White House is not
standing by the family planning provisions included in the economic
stimulus plan.  Recall that these family planning provisions simply allow states not to seek the permission of the federal government
before extending family planning coverage under Medicaid.  Worse,
they’re selling low-income women and families down the river for no
additional Republican votes.  Lindsay Beyerstein has the facts right here on Rewire, and Jodi Jacobson decries the spinelessness of the Dems, even when they’re in power.

For The American Prospect’s A. Serwer,
the Republicans’ opposition to contraceptive funding is evidence that
maybe anti-choicers are anti-sex:

I’ve never bought the idea that
opposition to abortion is solely about
controlling women’s bodies. I’ve just known too many people who were
genuinely sincere in their religious beliefs that abortion is wrong.
But I’ve seen little evidence that conservatives’ hostility to
contraception, to methods that prevent unwanted pregnancies and
therefore abortions, from taking place, could be anything else…Beyond
the fact that this policy would save the government money in the
long run (a finding from the same office that didn’t produce that report
on the stimulus), are Republicans really arguing that unwanted
pregnancies don’t result in a significant financial burden for families
that are already struggling in an economy that’s likely to get worse?
What’s the moral justification for denying them the choice of
preventing pregnancies they don’t want? That having sex should be
predicated on yearly income?

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Pill Inventor Sets the Record Straight on Demographics

One of the inventors of the birth control pill, Carl Djerassi, says that his comments about demographic shifts were taken seriously out of context by Catholic leaders worldwide and twisted to suggest that he regrets the effects of the Pill on demographic trends worldwide.  Djerassi writes,

I accused the disturbingly large xenophobic segment of Austrian voters
(notably young ones) of assuming that their small country was not
situated in the middle of Europe but rather on an island where God
permits them to live independently to enjoy their schnitzels…

To assume that I attributed the decline in Austria’s family size
(matched by all-Catholic Italy and Spain) to the pill is absurd. People
don’t have smaller families because of the availability of birth
control, but for personal, economic, cultural and other reasons, of
which the changes in the status and lifestyles of women during the last
50 years is the most important. Japan has an even worse demographic
problem than western Europe, yet the pill was only legalised there in
1999 and is still not used widely.

Vatican Condemns Repeal of the Global Gag Rule
Time magazine reports
on the Vatican’s response to President Obama’s repeal of the global gag
rule, saying that, "With unusual speed, the Vatican has condemned
Obama’s Jan. 23 repeal of
the ban on U.S. funding for foreign family planning aid groups who
offer abortion services."
Troubled by the swiftness of Obama’s pro-choice move, Fisichella
brushed off earlier vows by the new president to try to cut the number
of abortions, while ensuring a woman’s access to the procedure. "On
ethical questions, you can’t play with words," said the Italian
Archbishop, considered close to Pope Benedict XVI.

Economic Downturn Drives Interest in Egg Donation

On Salon’s Broadsheet,
Tracy Clark-Flory reports on recent news stories covering an uptick in
interest in egg donation among economically struggling women. 
Clark-Flory reminds us, "But keep in mind that the reported increase is
in interest, not actual donation"

There
is also a strict approval process for accepting donors, including a
screening of medical history and a series of psychological tests meant
to exclude those who are all about the cashova; the vast
majority of applicants are turned away. Plenty of applicants reject
themselves after being lectured about the required tests, daily hormone
injections, ultrasounds  and, ultimately, the needle stuck through
their vaginal wall. It is not by any means easy money, and maybe that
indicates the level of financial desperation at play.

The economy also means bad news for women and couples seeking to grow their families through egg donation: 

Of course, the recession is having an influence on the demand side of
this reproductive economy as well. Amy Demma, the president of
Prospective Families, says: "We are seeing a slowdown in demand for
donors. I guess folks are having a hard time." It’s safe to say.

Other News to Note
Topeka Capitol Journal: Abortion disclosure bill surfaces in House

CNSNews: Backing Away from Pelosi, White House Says Birth Control Funding in Stimulus Bill Was Not Obama’s Idea

Think Progress:Cavuto Rallies Against Family Planning Provision In Stimulus
http://wonkroom.thinkprogress.org/2009/01/26/covuto-family-planning/

New York Times: The Myth of Rampant Teenage Promiscuity

 

Analysis Law and Policy

Do Counselors-in-Training Have the Right to Discriminate Against LGBTQ People?

Greg Lipper

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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Keeton v. Anderson-Wiley

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 attempts to challenge bans 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.

News Family Planning

House Republicans Wield Appropriations Process Against Title X Funding

Christine Grimaldi

“It is particularly foolish to target Title X at a time when the nation is at the precipice of a public health emergency resulting from the Zika virus,” National Family Planning & Reproductive Health Association President and CEO Clare Coleman said in the group’s response.

Republicans in the U.S. House of Representatives are once again using the appropriations process to target Title X federal family planning services for low-income people.

House Appropriations Committee Chair Hal Rogers (R-KY) touted how the fiscal year 2017 Labor, Health, and Human Services (LHHS) funding bill would gut what he called a “controversial” federal program. To the contrary, many low-income people in the United States regard Title X as their only means to obtain critical health care, including family planning services, contraception, well-woman visits, cancer screenings, sexually transmitted infections screenings, and other preventive services.

Title X grants serve a highly vulnerable population—more than 90 percent women, nearly three-fifths people of color, and mostly uninsured or young, according to the U.S. Department of Health and Human Services’ (HHS) 2014 family planning annual report. The grants go to a network of more than 4,100 health and community service agencies. Centers that are funded by Title X are “particularly good” at providing women with the most effective contraceptive methods, like intrauterine devices and implants, according to the Guttmacher Institute.

Nevertheless, the draft bill would eliminate $286 million from Title X and another $108 million for federal Teen Pregnancy Prevention grants, according to a spokesperson for Appropriations Committee Democrats.

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Democrats will “raise strong objections” at Thursday’s subcommittee markup of the bill and again at next week’s planned full committee markup, the spokesperson told Rewire in an email.

If precedent holds, their voices will be heard. Republicans unsuccessfully targeted Title X funding in last year’s LHHS funding bill. The latest bid marks the fifth attempt to do so in seven years, according to a statement from the National Family Planning & Reproductive Health Association (NFPRHA). Yet, none of the proposed eliminations have ever been enacted into law, said the spokesperson for Appropriations Committee Democrats.

“Republicans need Democratic votes in Congress and the signature of a Democratic president in order to enact [a]ppropriations law, and Democrats will not vote for bills that contain divisive, poison pill riders and eliminations like this, which target women’s reproductive rights,” he said.

A spokesperson for Rep. Tom Cole (R-OK), chair of the Appropriations subcommittee with jurisdiction over the bill and a vocal reproductive health care foe who recently targeted AmeriCorps’ questionable abortion controversy, did not return Rewire’s request for comment; nor did a spokesperson for Rogers.

Title X funds can’t be used for abortion care. But because about a quarter of the funds go to Planned Parenthood affiliates, anti-choice Republicans have used Title X as a political football for years, starting in 2011 when the GOP threatened a government shutdown over the issue.

NFPRHA cautioned that the proposal could not come at a worse time for the 4.1 million people who depended on Title X funding in 2014, according to the most recent available data from HHS. U.S. Zika cases are on the rise, even as Congress remains deadlocked on a funding plan to address the sexually transmitted virus linked to microcephaly and other severe fetal brain defects.

“It is particularly foolish to target Title X at a time when the nation is at the precipice of a public health emergency resulting from the Zika virus,” NFPRHA President and CEO Clare Coleman said in the group’s response. “For the House to propose defunding the very provider network that is being called upon to address and control the risk to women who may be seeking to prevent pregnancy is absurd.”