When Getting Baked Means More than Just a Bun in the Oven

Amie Newman

The majority of pregnant women will experience some nausea or vomiting. For a some the extreme, nausea and vomiting is unrelenting. For an unlikely few, that condition becomes extreme - requiring an IV and treatment to ward off potential malnutrition.  Some women turn to marijuana for relief - and evidence shows it works. But can we have a "real" conversation in this country about the risks vs. benefits of illegal drug use during pregnancy?

Stumble upon any number of online communities for pregnant women and you can’t help but find women, mostly in their first trimester, spilling their guts (figuratively) about the fact that they’re spilling their guts regularly and feel as if they want to die daily from the nausea, inability to keep down food or drinks and the constant vomiting.

According to the Mayo Clinic’s Mary Murry, anywhere between 50 to 90 percent of pregnant women experience some nausea – to varying degrees. For most women, the nausea peaks, says Murry, around nine weeks and ends by about the 18th or 19th week of pregnancy. For five percent of unlucky women, however, it persists until the bitter end. It’s hardly surprising. If you’ve been pregnant or know someone who has, it’s likely that the saccharine sweet euphemism “morning sickness” doesn’t do justice to what you or your friends have felt. For some pregnant women, the nausea passes quickly and easily. For others it becomes a daily – or even hourly – battle between ones’ body and ones’ intellectual understanding that if one doesn’t consume a crumb of food at some point one will slowly starve or starve ones’ poor, growing embryo or fetus. This condition is called hyperemesis gravidarum and the constant vomiting and nausea lead to extreme weight loss and even malnutrition for the woman. It’s dangerous.

If there’s one theorem I can prove, however, it’s this: for every pregnant woman in the world whose experienced any symptom or discomfort under the sun, there a million different suggestions for treatment. But what happens when one of those suggestions is the use of an illegal substance?

When it comes to nausea and vomiting, women experiment to be sure: from prescription medication to concoctions of ginger tea and herbs to acupressure wristbands and more. When you’re experiencing what one pregnant woman posting on the Mayo Clinic’s pregnancy blog experienced, you’re willing to try almost anything.

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I’m 13 weeks into this and haven’t had a day of peace in over 7 weeks (it was 7 weeks this past Thursday, yes, I’m keeping count). I’ve been nauseated and throwing up to the point of going in for weekly IVs for 5 weeks now. I couldn’t wait to get pregnant and now that I am, I’m miserable and wonder how some women manage to have baby after baby! My poor husband has already succumbed to the idea that this might truly be our only child. My family and friends miss the old me; I miss the old me! The doctors and nurses keep telling me this stage will end soon, but these days seem never-ending. I wake up and dry-heave, I eat and throw it up, then I dry-heave some more and the cycle continues through my work day, and all the way until I get to bed.

Just what does “anything” look like though?

For many women, it looks suspiciously like pot. Marijuana. Cannabis. Because it is.

As one woman commented on the web site Momlogic.com, on a blog post about pregnancy,

During my first pregnancy, I was hospitalized repeatedly for dehydration due to severe hyperemesis,” wrote Holly. “Zofran didn’t work. I was so sick that I told my husband it was a good thing we didn’t own a gun — and at that point, I wasn’t kidding …. Did I eventually break down and try marijuana? You bet. Did it work? Yes. Do I feel guilty about it? Not a single bit.

The drug to which she refers, Zofran, is a prescription drug recommended by some OB-GYNs and midwives to treat nausea in pregnant women. It was originally created for use by chemotherapy patients who suffer from extreme nausea and vomiting especially evident in the aforementioned hyperemesis gravidarum condition. It’s true that Zofran works for some women; and, like with Holly, not at all for others. Some women question the safety of the medication, as well. Phenergan is another prescription medication to treat nausea and vomiting. These medications, however, are far from fail safe. Many women find themselves continuing to battle extreme deyhydration and malnutrition and are desperate for relief – even if that relief comes in the form of an illegal drug. Erin Hildebrandt chronicled her experience with life-threatening vomiting and nausea in her five pregnancies in Mothering magazine and the remedy which finally “saved her,”

“…as the nausea and vomiting increased, I began to lose weight. I was diagnosed as having hyperemesis gravidarum, a severe and constant form of morning sickness. I started researching the condition, desperately searching for a solution. I tried wristbands, herbs, yoga, pharmaceuticals, meditation—everything I could think of. Ultimately, after losing 20 pounds in middle pregnancy, and being hospitalized repeatedly for dehydration and migraines, I developed preeclampsia and was told an emergency cesarean was necessary…

“In my second pregnancy…Ten weeks after my first dose [of marijuana[, I had gained 17 pounds over my pre-pregnant weight. I gave beautiful and joyous birth to a 9 pound, 2 ounce baby boy in the bed in which he’d been conceived. I know that using marijuana saved us both from many of the terrible dangers associated with malnutrition in pregnancy.”

Marijuana is the most widely used illicit drug, by women of childbearing age in the United States, and it deserves more than a “talk to the hand” from health care providers, legal experts and advocates. It warrants what Lynn Paltrow of the National Advocates for Pregnant Women (NAPW) calls an “actual adult conversation” about the way pregnant women use marijuana for medicinal purposes – and the political and legal systems’ move to prosecute pregnant women who may have used marijuana to quell nausea or treat extreme medical conditions.

The use of marijuana – or cannabis – to treat medical conditions is nothing new. Cannabis has been used for thousands of years for medicinal, spiritual and recreational purposes. In 2008, cannabis was found stashed in the tomb of a Chinese shaman from 2700 years ago. Experts hypothesized that it may have been used for medicinal purposes – possibly for pain relief.

Cannabis has also been used throughout ancient history to specifically treat women’s reproductive health conditions – from menstrual cramps to the pain of childbirth. In the book Women and Cannabis: Women, Science and Sociology by Drs. Ethan Russo and Melanie Dreher the authors write:

“Cannabis has an ancient tradition of usage as a medicine in obstetrics and gyecology…but will surprise most by its depth of usage.” The authors cite, as one example, the Ancient Egyptian mixture of hemp seeds with agents found in beer, to ease the pain of a “difficult chilbirth.”

In this day and age, however, marijuana carries with it a heavy reputation. It is, of course, illegal. After more than a century of state and legislative attention to the drug, including a governmental propaganda campaign in the early part of the twentieth century (“Reefer Madness” anyone?), marijuana is placed on par with all other illegal drugs including crack, cocaine and heroine. In the 1980s, thanks to then-President Ronald Reagan, unprecedented criminal penalties for possession and dealing of marijuana were instituted and the “three srtrikes you’re out” policy has given rise to an exponential increase in the number of Americans who have been arrested for possession of marijuana. Since then, however, a growing medical marijuana movement has emerged, successfully passing laws which legalize the use of marijuana for medicinal purposes, to varying degrees, in 15 states so far.

We’ve arrived at point in time where the intersection of strident – and extremely ineffective – drug policy has combined forces, however informally, with an equally strident anti-choice movement which has slowly helped to pass laws which criminalize pregnant women’s behavior based on ideology and flimsy medical evidence. In Texas, the “Prenatal Protection Act” considers an embryo or fetus an “unborn child from conception to birth” for the purposes of murder or aggravated assault against a pregnant woman. It means an attacker can be considered for two crimes: one against the pregnant woman and one against her embryo or fetus. But pair that with drug laws like Texas’ “Delivery of a Controlled Substance to a Minor,” for example, and you have the perfect marriage of propaganda and control.

Alma Baker delivered twins in 2004 and tested positive for marijuana. She admitted that she smoked marijuana to treat nauseau and increase her appetite during her pregnancy. Despite the fact that her children were healthy and developmentally advanced, the Texas D.A. in the county in which Baker lived brought charges against her based on both laws. Baker was placed on probation and fined. Her lawyer had this to say of Baker’s felony prosecution:

“This is an end around Roe v. Wade,” he says, “and not a subtle one. By extension, where will we go with this? How about charging obese women or women who smoke with Child Endangerment?”

But, notes Lynn Paltrow, executive director for the National Assocation for Pregnant Women, the more urgent matter may be that these sorts of laws actually discourage pregnant women from seeking care. Alma Baker was clear:

“If I would have known that I’d get in trouble for telling my doctor the truth I would have either lied or not gone to the doctor,” she says.

Most major medical groups including the American College of Obstetricians and Gynecologists,  the American Medical Association – and an increasing number of experts –  agree with Paltrow. Paltrow’s work over many years, providing extensive, evidence based legal arguments against the prosecution of pregnant women for drug use, is consistently solidified by medical expert evidence and testimony on the effects of prosecuting pregnant women for prenatal marijuana use. But what about medical evidence on the actual, physiological effects of prenatal marijuana exposure on babies?

That’s the problem. There isn’t much of it.

The medical evidence is sparse given testing and trials involving pregnant women and illegal drug use are not exactly easy to undertake. So organizations and providers obviously tend towards relying on a more consersative framework when discussing which drugs and medications pregnant women can safely use. They also rely on information which seems to lump together women who abuse drugs, with women who may be using marijuana for truly medicinal purposes. Even the March of Dimes web site cannot help but use the limited research on prenatal exposure to marijuana to craft a rather vague informational section on marijuana use during pregnancy:

Some studies suggest that use of marijuana during pregnancy may slow fetal growth and slightly decrease the length of pregnancy (possibly increasing the risk of premature birth). These effects are seen mainly in women who use marijuana regularly (six or more times a week).

In one of the larger studies on prenatal marijuana exposure, published in the journal Pediatrics in 1994, Melanie Dreher, PhD, along with two of her colleagues, undertook an ethnographic study in Jamaica. The research focused on neonatal outcomes from the mothers’ marijuana use during pregnancy. Results did not show any differences, at 3 days old and at one month old, between newborns exposed to marijuana in utero and those who hadn’t been exposed. Why, Jamaica? From the report,

With regard to the research context, it should be noted that virtually all the studies of prenatal exposure have been conducted in the United States and Canada where marijuana use is primarily recreational. This is in marked contrast to other societies, such as Jamaica, where scientific reports have documented the cultural integration of marijuana and its ritual and medicinal as well as recreational functions. [n14,n15] Previous studies have had difficulty controlling possible confounding effects of factors such as polydrug use, antenatal care, mothers’ nutritional status, maternal age, SES and social support, as well as the effects of different caretaking environments, which could lead to differences inneonate behavior. The legal and social sanctions associated with illicit drug use often compromise self-report data and render it almost impossible to obtain accurate prenatal exposure levels. [emphasis added]

In a study carried out in Canada, “Survey of Medicinal Cannabis Use Among Childbearing Women,” researchers looked specifically at how 84 women who used marijuana during pregnancy to treat nausea, vomiting and hyperemesis gravidarum rated the effectiveness of “cannabis therapy.” The women were recruited through “compassion societies” – where they receive medical marijuana. The authors found that almost all of the women–92 percent–found cannabis to be “extremely effective” or “effective” for treating nausea and vomiting; and suggested that the use of marijuana to treat “severe nausea and vomiting” certainly warranted further investigation.

The evidence may be minimal but some physicians and midwives are suggesting marijuana use for extreme vomiting and nausea during pregnancy – regardless of the state of criminalization. One midwife I spoke with, who preferred that I do not use her name, told me:

“I do encourage moms to use marijuana in moderation and only as needed for extreme nausea and vomiting in early pregnancy. I also tell them that marijuana has an estrogenic effect and that overuse could theoretically disrupt early pregnancy hormones and place someone at risk for miscarriage, but it’s not likely.”

On Momlogic.com, women share stories of their physicians suggesting marijuana use as well. Writing of her horrific experience with vomiting and nausea during pregnancy, Jessica Katz wrote:

Even though I am taking Zofran again, I am deathly ill. Now, I know that while you’re pregnant you are supposed to limit caffeine, stop eating sushi and nitrates and not even touch Excedrin. So you can imagine my surprise when my doctor suggested marijuana as a treatment for morning sickness. I was floored. I am pretty sure that you are not supposed to do drugs in general, let alone when you are carrying a child. Don’t they take your kids away from you if you do drugs while you are pregnant?

I went home and Googled this remedy. Could it be real? I found page after page of moms saying they’d used medical marijuana to treat their severe morning sickness, and that it had worked.

Other pregnant women on the site rushed to tell her she wasn’t alone:

“If I [hadn’t smoked] marijuana when I was pregnant with my second child, I would have never eaten,” wrote Anonymous. “The smell [and] taste of food made me so sick I couldn’t stand it. I didn’t do much — just a small hit, and then I was fine. If [your doctor] said it will help, believe him.”

On Babycenter,com, when one of their “pregnancy experts” dared to suggest that marijuana use during pregnancy, was shown to be unsafe through studies, and equated it with smoking tobacco, currently and formerly pregnant women rose up, to dispute his claims:


I am a toxicologist, and nothing saddens me more than patronizing “professionals” like Mr. Briggs who present unsubstantiated speculations as facts. It is far too easy in this society to scare women with such misinformation…

My message to the Mr. Briggs of the world is to stop patronizing women and admit that it is HIGHLY likely given the generations of people born to women who smoked marijuana (or had a couple beers for pete’s sake!) during pregnancy, that this is not a ‘drug’ worth demonizing.

But when pregnant women do resort to utilizing cannabis to treat extreme vomiting, appetite problems and malnutrition, they may be placing themselves in danger – not only in terms of the criminalization of possession in states where medical marijuana is not legal. They are leaving themselves open to being drug tested after their baby is born and then potentially prosecuted for child abuse and neglect. It’s the “Alma Baker’ scenario mentioned above. Says the midwife with whom I spoke:

“I counsel women that if there is a hospital transfer and the hospital conducts a drug test that she could be placing herself and her baby at risk of some unwanted intervention.”

In states where medical marijuana laws apply, pregnant women are allowed to use marijuana to treat pregnancy related symptoms. Sabrina Fendrick of NORML (National Organization for the Reform of Marijuana Laws) Women’s Alliance told Rewire that just because a pregnant woman is allowed to access marijuana for medicinal purposes in those states where it’s legal, it doesn’t necessarily mean that she’ll be automatically protected when it comes to drug testing, however. And in those states where marijuana use is illegal, Fendrick says she receives emails “at least once a week” from mothers who are in danger of losing their children after having tested positive for marijuana use after giving birth.

In South Carolina in 2009, a mother who had used marijuana during pregnancy was prosecuted for child abuse and no less than three medical experts came to her defense to decry the lack of any evidence of physiological, emotional or mental effects from the marijuana use. Dr. Deborah Frank, Harvard educated, Board certified in Pediatrics, and a Professor of Pediatrics at Boston University’s School of Medicine not only found no evidence of abuse but said the child “appeared to be doing very well” and was developing in a positive way. Dr. Peter Fried, a PhD in Psychology and a retired Professor from Carleton University in Ottawa, Canada has done extensive research on prenatal exposure to marijuana. Though he’s found some potentially negative effects, in this case, he stated clearly that “to characterize an infant born to a woman who used marijuana during pregnancy as ‘physically abused” and/or neglected is contrary to all scientific evidence. The use of marihuana during pregnancy has not been shown by any objective research to result in abuse or neglect.”

This isn’t a question of whether or not marijuana can be used as a medicinal for particular, chronic, extreme conditions during pregnancy. Pregnant woman around the world are already doing what they need to – to keep themselves happy and to keep their fetuses growing and healthy. Physicians and and midwives recognize the medicinal properties and prescribe the use of marijuana in certain cases as well. Citizens are fighting to pass laws which do the same. Reproductive justice advocates may be understandably nervous about a potential alliance with advocates who work on drug policy issues. Considering anti-choice politics make it next to impossible to engage in an evidence-based discussion on the risks vs. benefits of medicinal marijuana in pregnancy, it’s extraordinarly difficult to have the “adult conversation” advocates like Lynn Paltrow work so hard to sustain. Laws that serve only to control the lives of pregnant and parenting women, at the expense of both women’s and children’s health and safety, are born from anti-choice legislators and advocates. In the now, we have pregnant women in this country that are either forced to turn to illegal drugs in order to experience relief from, at times, a life-threatening condition or find themselves embroiled in a legal system which seems to prioritize laws in the abstract over what’s truly in the best interest of mother and child.

News Politics

NARAL President Tells Her Abortion Story at the Democratic National Convention

Ally Boguhn

Though reproductive rights and health have been discussed by both Democratic Party presidential nominee Hillary Clinton and Sen. Bernie Sanders (I-VT) while on the campaign trail, Democrats have come under fire for failing to ask about abortion care during the party’s debates.

Ilyse Hogue, president of NARAL Pro-Choice America, told the story of her abortion on the stage of the Democratic National Convention (DNC) Wednesday evening in Philadelphia.

“Texas women are tough. We approach challenges with clear eyes and full hearts. To succeed in life, all we need are the tools, the trust, and the chance to chart our own path,” Hogue told the crowd on the third night of the party’s convention. “I was fortunate enough to have these things when I found out I was pregnant years ago. I wanted a family, but it was the wrong time.”

“I made the decision that was best for me — to have an abortion — and to get compassionate care at a clinic in my own community,” she continued. “Now, years later, my husband and I are parents to two incredible children.”

Hogue noted that her experience is similar to those of women nationwide.

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“About one in three American women have abortions by the age of 45, and the majority are mothers just trying to take care of the families they already have,” she said. “You see, it’s not as simple as bad girls get abortions and good girls have families. We are the same women at different times in our lives — each making decisions that are the best for us.”

As reported by Yahoo News, “Asked if she was the first to have spoken at a Democratic National Convention about having had an abortion for reasons other than a medical crisis, Hogue replied, ‘As far as I know.'”

Planned Parenthood Federation of America President Cecile Richards on Tuesday night was the first speaker at the DNC in Philadelphia to say the word “abortion” on stage, according to Vox’s Emily Crockett. 

Richards’ use of the word abortion was deliberate, and saying the word helps address the stigma that surrounds it, Planned Parenthood Action Fund’s Vice President of Communication Mary Alice Carter said in an interview with ThinkProgress. 

“When we talk about reproductive health, we talk about the full range of reproductive health, and that includes access to abortion. So we’re very deliberate in saying we stand up for a woman’s right to access an abortion,” Carter said.

“There is so much stigma around abortion and so many people that sit in shame and don’t talk about their abortion, and so it’s very important to have the head of Planned Parenthood say ‘abortion,’ it’s very important for any woman who’s had an abortion to say ‘abortion,’ and it’s important for us to start sharing those stories and start bringing it out of the shadows and recognizing that it’s a normal experience,” she added.

Though reproductive rights and health have been discussed by both Democratic Party presidential nominee Hillary Clinton and Sen. Bernie Sanders (I-VT) while on the campaign trail, Democrats have come under fire for failing to ask about abortion care during the party’s debates. In April, Clinton called out moderators for failing to ask “about a woman’s right to make her own decisions about reproductive health care” over the course of eight debates—though she did not use the term abortion in her condemnation.

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.

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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.