Commentary Health Systems

Do New Health Law Mandates Threaten Conscience Rights and Access to Care?

I firmly believe the requirements under the Affordable Care Act, and the slate of regulations being created to implement it, infringe on no one’s conscience, demand no one change her or his religious beliefs, discriminate against no man or woman, put no additional economic burden on the poor, interfere with no one’s medical decisions, compromise no one’s health -- that is, if you consider the law without refusal clauses.

See all our coverage of the November 2011 Mandate Hearing here.

This testimony was submitted to the US House of Representatives Committee on Energy and Commerce’s Subcommittee on Health on November 2, 2011. It is written testimony for the hearing record on “Do New Health Law Mandates Threaten Conscience Rights and Access to Care?”

The article was amended at 12:38 p.m., Thursday, November 3rd to correct links in one paragraph.

Mr. Chairman, Ranking Member Pallone and Members of the Subcommittee, thank you for this opportunity to present testimony on behalf of Catholics for Choice on this important question of conscience rights and access to comprehensive healthcare.

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For nearly 40 years, Catholics for Choice has served as a voice for Catholics who believe that the Catholic tradition supports a woman’s moral and legal right to follow her conscience on matters of sexuality and reproductive health. Throughout the world, we strive to be an expression of Catholicism as it is lived by ordinary people. We are part of the great majority of the faithful in the Catholic church who disagrees with the dictates of the Vatican on matters related to sex, marriage, family life and motherhood. We represent those who believe that Catholic teachings on conscience mean that every individual must follow his or her own conscience — and respect others’ right to do the same.

Certainly, at Catholics for Choice, we are no strangers to the intersection of religion, sex and politics. While religious voices and traditions are a vital part of public discourse, religious views should not be given disproportionate weight in public policy discussions. When this happens the lives of men and women can suffer greatly. We believe in a world where all voices, the voices of the religious and of the secular, of Catholics and non-Catholics alike, are heard in public policy discussions.

This hearing seeks to answer the question: Do new health law mandates threaten conscience rights and access to care? I firmly believe the requirements under the Affordable Care Act, and the slate of regulations being created to implement it, infringe on no one’s conscience, demand no one change her or his religious beliefs, discriminate against no man or woman, put no additional economic burden on the poor, interfere with no one’s medical decisions, compromise no one’s health — that is, if you consider the law without refusal clauses. When the question is asked in light of these unbalanced and ever-expanding clauses, the answer becomes yes, it would do all these things. When burdened by such refusal clauses, the new health law absolutely threatens the conscience rights of every patient seeking care for these restricted services and of every provider who wishes to provide comprehensive care to their patients. These restrictions go far beyond their intent of protecting conscience rights for all by eliminating access to essential healthcare for many, if not most patients, especially in the area of reproductive healthcare services. This will make it harder for many working Americans to get the healthcare they need at a cost they can afford.

The Affordable Care Act has many positive elements to it. Millions will now be able to access insurance coverage for their health needs and, with the basic level of coverage required under the new law, these newly insured and the millions of those better insured will now have greater access to a wider range of services than ever before. However, the law includes a refusal clause which has been expanded in the past decades to threaten the consciences of both those who seek to receive and those who want to provide services. Advocates of these expansive refusal clauses claim these are necessary to protect conscience rights. Others believe that refusal clauses such as these are simply part of attempts to derail the Affordable Care Act and to curb access to reproductive healthcare services entirely. Moreover, proposals to expand existing refusal clauses increase threats to the conscience rights of patients and providers by including not just abortion but also family planning services and, should some get their way, any other service deemed “unacceptable” by a tiny minority.

In recent years, under the guise of protecting religious freedom and “conscience rights” we have seen a dramatic upswing in attempts to expand the scope of refusal clauses, their application, and the entities able to utilize them. These new, ever-broader refusal clauses do far more than allow those healthcare professionals or social service providers with conscience objections to opt out. Instead, they are effectively being used as a means to refuse some treatments, medications, benefits and services to all comers.

These expansions have increased not only the services that may be refused—including reproductive health services as well as insurance coverage for those services and even training for medical professionals—but they have also the number of those who may claim these protections. Almost everyone, including most Catholics, agrees that it is reasonable to allow healthcare professionals, including doctors, nurses and pharmacists, to opt out of providing essential reproductive healthcare services and medications to which they conscientiously object. There is no doubt that there are times when the conscience of an individual doctor, nurse or pharmacist may conflict with the wishes orneeds of a patient. This often happens in cases related to abortion. Except in emergency situations, it is reasonable and indeed prudent to allow those who are opposed to abortion to opt out of providing the service. In these situations, women seeking these services should not have to worry about the religious and moral beliefs of their healthcare providers interfering with the provision of the best possible care. Therefore, it is in the best interests of all that only medical professionals committed to providing such services do so. Women need support and compassionate care when they access reproductive healthcare services, not judgment and disdain.

When this is not possible, a reasonable ethical fallback is for the institution to guarantee timely referrals to ensure that patients receive continuity of care without facing an undue burden, such as traveling long distances or encountering additional barriers to obtaining the desired services. Moreover, good practice should also compel a religious institution to make sure that the consciences of both the healthcare (or social services) provider and the patient (or client) are accommodated by having policies in place that enable individuals to receive whatever medications they are prescribed, procedures they require or services they seek.

Like many Catholics, I accept that conscience has a role to play in providing healthcare services, but recent moves to expand conscience protections beyond the simple right for individual healthcare providers to refuse to provide services to which they personally object go too far. Increasingly, demands and regulatory proposals attempt to grant that option to an institution or any individual along the spectrum of care, funding and coverage. It is incredible to suggest that a hospital or an insurance plan has a conscience. Granting institutions, or entities like these, legal protection for the rights of conscience that properly belongs to individuals is an affront to our ideals of conscience and religious freedom.

Allowing religious institutions to dictate the medical care available to their employees or religiouslyaffiliated organizations to dictate what services their beneficiaries are allowed to access would encroach on the individual consciences of those seeking care and assistance. Refusal clauses such as these fly in the face of true religious freedom by promoting the interests of certain elements of particular religions over the consciences and beliefs of individuals. They ignore the moral agency of the many who do not share the beliefs of a particular religious ideology. If allowed to stand, these refusal clauses do nothing but endanger many women’s access to the healthcare they need. When codified into law at the federal or state level, these “protections” actually constitute state-sponsored discrimination against women based on where they are employed, where and how they buy health insurance and where they seek to receive care.

Today, the 98 percent of sexually active Catholic women in the US who have used a form of contraception banned by the Vatican have exercised their religious freedom and followed their consciences in making the decision to use contraception. Thus, they are in line with the totality of Catholic teachings, if not with the views of the hierarchy. The problem is very clearly with the Catholic hierarchy and not the Catholic church, which includes the vast majority of the 68 million Catholics in the United States who use and support the availability of comprehensive reproductive healthcare services for all those who choose to utilize them.

Having failed to convince Catholics in the pews, the United States Conference of Catholic Bishops (USCCB) and other conservative Catholic organizations are now attempting to impose their personal beliefs on all people by seeking special protection for their “conscience rights.“ They claim to represent all Catholics when, in truth, theirs is the minority view. The bishops have identified several sympathetic high-profile allies in healthcare, education and social service provision to assist them in promoting their demands, but these allies are heavily reliant on the bishops for funding and prestige. Hospitals and colleges can lose their Catholic designation at the bishop’s whim, as happened recently in Phoenix, Arizona.

At a Catholic hospital in Phoenix, medical professionals acted to save the life of a pregnant woman by performing a life-saving abortion on a mother of four. The local bishop decided that his authority over the hospital allowed him to second-guess the medical decisions they made and he stripped the hospital of its Catholic designation. This is antithetical to the Catholic social justice tradition, which would not leave a woman’s life out of any healthcare equation.

What occurred in Phoenix helps to illustrate the problem with the bishops’ intrusion into medical decisions. The personal and professional freedom to make healthcare decisions is being threatened by expansive refusal clauses. The exemptions that the USCCB and other conservative Catholic organizations are demanding do not offer any more protection for religious freedom, but rather impede the religious freedom of millions of Americans, taking reproductive healthcare options away from everybody.

The USCCB and some Catholic organizations, many that receive taxpayer money, are asking to be allowed to:

  • deny condoms as part of HIV outreach;
  • ban employees and their dependents from getting the benefit of no-cost contraceptive coverage that other insured Americans enjoy;
  • opt out of providing emergency contraception to victims of sexual violence who come to Catholic hospitals for help; and
  • deny abortion care to everybody — even those women whose lives are threatened by their pregnancy.

They claim that they are representing all Catholics, but this is not true. The majority of Catholics support equal access to contraceptive services and oppose policies that impede upon that access. 

Two-thirds of Catholics (65 percent) believe that clinics and hospitals that take taxpayer money should not be allowed to refuse to provide procedures or medications based on religious beliefs. A similar number, 63 percent, also believes that health insurance, whether private or government-run, should cover contraception. A strong majority (78 percent) of Catholic women prefer that their hospital offer emergency contraception for rape victims, while more than half (55 percent) want their hospital to provide it in broader circumstances. This support for the full range of contraceptive services is unsurprising, as restrictions such as refusal clauses or prohibitive costs affect Catholics just as often as non-Catholics — 98 percent of sexually active Catholic women have used a modern method of birth control,mirroring the rate of the population at large (99 percent).

Advocating for expansive refusal clauses in healthcare delivery regulations would affect all patients — whether those patients are Catholic or not. Seeking exemptions for religious organizations to cover essential health benefits, such as full coverage of recommended preventive services including contraception, under the Affordable Care Act will only serve to endanger many women’s access to the healthcare they need — whether those employees share those religious beliefs or not. In reality, these exemptions would deny the right of everyone seeking comprehensive healthcare.

When religious voices are allowed to direct policymaking, the best interests of those seeking healthcare services can be ignored. This is clear in the case of the Catholic healthcare industry which, despite providing much valuable service, persists in refusing to provide a full range of reproductive healthcare services, even to those who are in desperate need of them.

Respect for individual conscience is at the core of Catholic teaching. Catholicism also requires deference to the conscience of others in making one’s own decisions. Our faith compels us to listen to our own consciences in matters of moral decision-making and to respect the rights of others to do the same. Our intellectual tradition emphasizes that conscience can be guided, but not forced, in any direction. This deference for the primacy of conscience extends to all men and women and to their personal decisions about moral issues.

Our faith also compels us to respect religious pluralism and religious freedom. Religious freedom is an expansive rather than restrictive idea. It has two sides: freedom of religion and freedom from religion. It is not about telling people what they can and cannot believe or practice, but rather about respecting an individual’s right to follow his or her own conscience in religious beliefs and practices, as well as in moral decision making. The protections we put in place to preserve religious freedom do not permit religious institutions or individuals to obstruct or coerce the exercise of another’s conscience.

Sweeping refusal clauses and exemptions allow a few to dictate what services many others may access. They disrespect the individual capacities of women to act upon their individual conscience-based decision. They impede the rights of women and men to make their own decisions about what is best for their own health, and that of their families, as well as restricting their right to act upon those decisions without undue and unjust burdens.

One woman who saw these burdens placed on her conscience rights is “Sandra,” a science teacher at a Catholic school in the Midwest. Her story is an example of the many Americans who fall under these types of expansive refusal clauses being pushed by the bishops and their allied organizations. What is a reality for Sandra today is what many women can look forward to in their future.

As with almost all Catholic schools, Sandra’s employers follow diocesan rules regarding employees’ insurance — meaning no contraceptive coverage, regardless of medical necessity. When she first learned of the refusal clause proposed in the recent regulation to implement the preventive health services under the Affordable Care Act, she was outraged. As she explained to us, they added “insult to injury” by ignoring the healthcare needs of women like her and allowing her employers to continue to deny her coverage.

“I just never assumed that in 2011 I would be denied birth control,” she said. “I’m in my mid-twenties. I have no intention of having kids at the moment. I like teaching kids, but it’s a whole other thing having them.”

Sandra lost coverage when she began working under the jurisdiction of her local diocese. “I went to fill my birth control prescription like I always do. I say ‘Here’s my new insurance card,’ and they say I’m not covered,” she related. “They thought that it was weird and asked where I worked. As soon as I said I worked in a Catholic school, they said, ‘Oh, 99 percent of Catholic schools will not cover it. We’ve never had it covered before.’ I had no clue.”

For Sandra, this posed a significant hardship. She had taken a salary reduction in order “to go to work every day saying that it’s what I love.” She and her husband had carefully considered their insurance plans and determined that it was more economical for them to remain on separate policies, but once she had to pay out of pocket for the birth control that was best for her, a non-generic prescription, their careful financial planning was all for naught.

“Birth control is a lot of extra money on top of the salary reduction, but the principle of it is really what gets me,” she told us. “I don’t like being told by some guy that I’ve never met that I can’t use it. The bishops are not even having sex in the first place. How are they supposed to know how to tell me what to do in that situation?”

Her story, as she recognized, is all too common and reflects the repeated marginalization of many women by the Catholic hierarchy—the same women whose voices have been deemed unimportant by those on both sides of the recent debates. Sandra is just one of the many individuals whose conscience is not being protected by refusal clauses exempting entire institutions from covering their employees for services guaranteed to everyone else by the new law.

Catholic teachings on conscience require due deference to the conscience of others in making decisions — that the employer should not be allowed to dismiss the conscience of the employee seeking coverage for the healthcare services guaranteed to any other. In light of this precept, the public policy efforts of the hierarchy should take into account the experiences of individual Catholics as well as the beliefs of patients and clients, workers in social services and healthcare providers of other faiths and no faith, so that patients will not be refused any legal and medically appropriate treatment or be denied services they seek.

You have heard from some conservative Catholics on this issue, but it would be a grave mistake to confuse the individual positions of a few powerful interest groups with the majority view of the more than 68 million Catholics in the United States. For Catholic employers to claim to be the arbiter of any person’s good conscience is clearly disingenuous. When medical professionals refuse to provide legal reproductive health services, or provide timely referrals to other providers, they violate the right to conscience of the person seeking those services. This does not fall under anybody’s definition of a good conscience. Catholics for Choice and the majority of Catholics respect everybody’s individual conscience and their ability to act in accordance with their personal beliefs. However, we expect the hierarchy and their allied organizations, in keeping with the teachings of our shared Catholic faith and our American tradition, to respect our consciences and the consciences of the patients and clients who seek the services they need. We hope that those who serve to represent all of us in public service and in government will respect our consciences, too.

Protecting the freedom of conscience for all Americans no matter what their beliefs may be — for the atheist, for the employee of a Catholic institution, for the sexual assault victim who seeks care at a Catholic hospital — is indeed the job of the government. Expanding individual refusal clauses to include institutions and exemptions for religious institutions to deny the rights of all would sacrifice these people’s rights. Public policy should be implemented to further the common good and to enable people to exercise their conscience-based healthcare decisions.

Lawmakers of all political hues can come together to support a balanced approach to individual conscience rights and access to comprehensive healthcare. It makes sense for all those who want to provide more options to women seeking to decide when and whether to have a child. It makes sense for those who want to keep the government’s involvement in healthcare to a minimum. And it makes sense for those who think that it is the government’s role to facilitate the healthcare decisions that people want to make. Above all, it makes sense for a society that believes in freedom of religion — a right one can’t claim for oneself without extending it to one’s neighbor. The bottom line is that protecting conscience rights and preserving access to care shouldn’t just be about protecting those who seek to dictate what care is and is not available to all. Nor should it be for those who would dismiss the conscience of others by imposing their view of which consciences are worth protecting.

Protecting individual conscience and ensuring access to affordable, quality care is not just an ideal, it is a basic tenet of our society and it is the right thing to do. I thank the Subcommittee for inviting me today and for your attention. I look forward to any questions Members may have.

Analysis Economic Justice

New Pennsylvania Bill Is Just One Step Toward Helping Survivors of Economic Abuse

Annamarya Scaccia

The legislation would allow victims of domestic violence, sexual assault, and stalking to terminate their lease early or request locks be changed if they have "a reasonable fear" that they will continue to be harmed while living in their unit.

Domestic violence survivors often face a number of barriers that prevent them from leaving abusive situations. But a new bill awaiting action in the Pennsylvania legislature would let survivors in the state break their rental lease without financial repercussions—potentially allowing them to avoid penalties to their credit and rental history that could make getting back on their feet more challenging. Still, the bill is just one of several policy improvements necessary to help survivors escape abusive situations.

Right now in Pennsylvania, landlords can take action against survivors who break their lease as a means of escape. That could mean a lien against the survivor or an eviction on their credit report. The legislation, HB 1051, introduced by Rep. Madeleine Dean (D-Montgomery County), would allow victims of domestic violence, sexual assault, and stalking to terminate their lease early or request locks be changed if they have “a reasonable fear” that they will continue to be harmed while living in their unit. The bipartisan bill, which would amend the state’s Landlord and Tenant Act, requires survivors to give at least 30 days’ notice of their intent to be released from the lease.

Research shows survivors often return to or delay leaving abusive relationships because they either can’t afford to live independently or have little to no access to financial resources. In fact, a significant portion of homeless women have cited domestic violence as the leading cause of homelessness.

“As a society, we get mad at survivors when they don’t leave,” Kim Pentico, economic justice program director of the National Network to End Domestic Violence (NNEDV), told Rewire. “You know what, her name’s on this lease … That’s going to impact her ability to get and stay safe elsewhere.”

“This is one less thing that’s going to follow her in a negative way,” she added.

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Pennsylvania landlords have raised concerns about the law over liability and rights of other tenants, said Ellen Kramer, deputy director of program services at the Pennsylvania Coalition Against Domestic Violence, which submitted a letter in support of the bill to the state House of Representatives. Lawmakers have considered amendments to the bill—like requiring “proof of abuse” from the courts or a victim’s advocate—that would heed landlord demands while still attempting to protect survivors.

But when you ask a survivor to go to the police or hospital to obtain proof of abuse, “it may put her in a more dangerous position,” Kramer told Rewire, noting that concessions that benefit landlords shift the bill from being victim-centered.

“It’s a delicate balancing act,” she said.

The Urban Affairs Committee voted HB 1051 out of committee on May 17. The legislation was laid on the table on June 23, but has yet to come up for a floor vote. Whether the bill will move forward is uncertain, but proponents say that they have support at the highest levels of government in Pennsylvania.

“We have a strong advocate in Governor Wolf,” Kramer told Rewire.

Financial Abuse in Its Many Forms

Economic violence is a significant characteristic of domestic violence, advocates say. An abuser will often control finances in the home, forcing their victim to hand over their paycheck and not allow them access to bank accounts, credit cards, and other pecuniary resources. Many abusers will also forbid their partner from going to school or having a job. If the victim does work or is a student, the abuser may then harass them on campus or at their place of employment until they withdraw or quit—if they’re not fired.

Abusers may also rack up debt, ruin their partner’s credit score, and cancel lines of credit and insurance policies in order to exact power and control over their victim. Most offenders will also take money or property away from their partner without permission.

“Financial abuse is so multifaceted,” Pentico told Rewire.

Pentico relayed the story of one survivor whose abuser smashed her cell phone because it would put her in financial dire straits. As Pentico told it, the abuser stole her mobile phone, which was under a two-year contract, and broke it knowing that the victim could not afford a new handset. The survivor was then left with a choice of paying for a bill on a phone she could no longer use or not paying the bill at all and being turned into collections, which would jeopardize her ability to rent her own apartment or switch to a new carrier. “Things she can’t do because he smashed her smartphone,” Pentico said.

“Now the general public [could] see that as, ‘It’s a phone, get over it,'” she told Rewire. “Smashing that phone in a two-year contract has such ripple effects on her financial world and on her ability to get and stay safe.”

In fact, members of the public who have not experienced domestic abuse may overlook financial abuse or minimize it. A 2009 national poll from the Allstate Foundation—the philanthropic arm of the Illinois-based insurance company—revealed that nearly 70 percent of Americans do not associate financial abuse with domestic violence, even though it’s an all-too-common tactic among abusers: Economic violence happens in 98 percent of abusive relationships, according to the NNEDV.

Why people fail to make this connection can be attributed, in part, to the lack of legal remedy for financial abuse, said Carol Tracy, executive director of the Women’s Law Project, a public interest law center in Pennsylvania. A survivor can press criminal charges or seek a civil protection order when there’s physical abuse, but the country’s legal justice system has no equivalent for economic or emotional violence, whether the victim is married to their abuser or not, she said.

Some advocates, in lieu of recourse through the courts, have teamed up with foundations to give survivors individual tools to use in economically abusive situations. In 2005, the NNEDV partnered with the Allstate Foundation to develop a curriculum that would teach survivors about financial abuse and financial safety. Through the program, survivors are taught about financial safety planning including individual development accounts, IRA, microlending credit repair, and credit building services.

State coalitions can receive grant funding to develop or improve economic justice programs for survivors, as well as conduct economic empowerment and curriculum trainings with local domestic violence groups. In 2013—the most recent year for which data is available—the foundation awarded $1 million to state domestic violence coalitions in grants that ranged from $50,000 to $100,000 to help support their economic justice work.

So far, according to Pentico, the curriculum has performed “really great” among domestic violence coalitions and its clients. Survivors say they are better informed about economic justice and feel more empowered about their own skills and abilities, which has allowed them to make sounder financial decisions.

This, in turn, has allowed them to escape abuse and stay safe, she said.

“We for a long time chose to see money and finances as sort of this frivolous piece of the safety puzzle,” Pentico told Rewire. “It really is, for many, the piece of the puzzle.”

Public Policy as a Means of Economic Justice

Still, advocates say that public policy, particularly disparate workplace conditions, plays an enormous role in furthering financial abuse. The populations who are more likely to be victims of domestic violence—women, especially trans women and those of color—are also the groups more likely to be underemployed or unemployed. A 2015 LGBT Health & Human Services Network survey, for example, found that 28 percent of working-age transgender women were unemployed and out of school.

“That’s where [economic abuse] gets complicated,” Tracy told Rewire. “Some of it is the fault of the abuser, and some of it is the public policy failures that just don’t value women’s participation in the workforce.”

Victims working low-wage jobs often cannot save enough to leave an abusive situation, advocates say. What they do make goes toward paying bills, basic living needs, and their share of housing expenses—plus child-care costs if they have kids. In the end, they’re not left with much to live on—that is, if their abuser hasn’t taken away access to their own earnings.

“The ability to plan your future, the ability to get away from [abuse], that takes financial resources,” Tracy told Rewire. “It’s just so much harder when you don’t have them and when you’re frightened, and you’re frightened for yourself and your kids.”

Public labor policy can also inhibit a survivor’s ability to escape. This year, five states, Washington, D.C., and 24 jurisdictions will have passed or enacted paid sick leave legislation, according to A Better Balance, a family and work legal center in New York City. As of April, only one of those states—California—also passed a state paid family leave insurance law, which guarantees employees receive pay while on leave due to pregnancy, disability, or serious health issues. (New Jersey, Rhode Island, Washington, and New York have passed similar laws.) Without access to paid leave, Tracy said, survivors often cannot “exercise one’s rights” to file a civil protection order, attend court hearings, or access housing services or any other resource needed to escape violence.

Furthermore, only a handful of state laws protect workers from discrimination based on sex, sexual orientation, gender identity, and pregnancy or familial status (North Carolina, on the other hand, recently passed a draconian state law that permits wide-sweeping bias in public and the workplace). There is no specific federal law that protects LGBTQ workers, but the U.S. Employment Opportunity Commission has clarified that the Civil Rights Act of 1964 does prohibit discrimination based on gender identity and sexual orientation.

Still, that doesn’t necessarily translate into practice. For example, the National Center for Transgender Equality found that 26 percent of transgender people were let go or fired because of anti-trans bias, while 50 percent of transgender workers reported on-the-job harassment. Research shows transgender people are at a higher risk of being fired because of their trans identity, which would make it harder for them to leave an abusive relationship.

“When issues like that intersect with domestic violence, it’s devastating,” Tracy told Rewire. “Frequently it makes it harder, if not impossible, for [victims] to leave battering situations.”

For many survivors, their freedom from abuse also depends on access to public benefits. Programs like Temporary Assistance for Needy Families (TANF), Supplemental Nutrition Assistance Program (SNAP), the child and dependent care credit, and earned income tax credit give low-income survivors access to the money and resources needed to be on stable economic ground. One example: According to the Center on Budget and Policy Priorities, where a family of three has one full-time nonsalary worker earning $10 an hour, SNAP can increase their take-home income by up to 20 percent.

These programs are “hugely important” in helping lift survivors and their families out of poverty and offset the financial inequality they face, Pentico said.

“When we can put cash in their pocket, then they may have the ability to then put a deposit someplace or to buy a bus ticket to get to family,” she told Rewire.

But these programs are under constant attack by conservative lawmakers. In March, the House Republicans approved a 2017 budget plan that would all but gut SNAP by more than $150 million over the next ten years. (Steep cuts already imposed on the food assistance program have led to as many as one million unemployed adults losing their benefits over the course of this year.) The House GOP budget would also strip nearly $500 billion from other social safety net programs including TANF, child-care assistance, and the earned income tax credit.

By slashing spending and imposing severe restrictions on public benefits, politicians are guaranteeing domestic violence survivors will remain stuck in a cycle of poverty, advocates say. They will stay tethered to their abuser because they will be unable to have enough money to live independently.

“When women leave in the middle of the night with the clothes on their back, kids tucked under their arms, come into shelter, and have no access to finances or resources, I can almost guarantee you she’s going to return,” Pentico told Rewire. “She has to return because she can’t afford not to.”

By contrast, advocates say that improving a survivor’s economic security largely depends on a state’s willingness to remedy what they see as public policy failures. Raising the minimum wage, mandating equal pay, enacting paid leave laws, and prohibiting employment discrimination—laws that benefit the entire working class—will make it much less likely that a survivor will have to choose between homelessness and abuse.

States can also pass proactive policies like the bill proposed in Pennsylvania, to make it easier for survivors to leave abusive situations in the first place. Last year, California enacted a law that similarly allows abuse survivors to terminate their lease without getting a restraining order or filing a police report permanent. Virginia also put in place an early lease-termination law for domestic violence survivors in 2013.

A “more equitable distribution of wealth is what we need, what we’re talking about,” Tracy told Rewire.

As Pentico put it, “When we can give [a survivor] access to finances that help her get and stay safe for longer, her ability to protect herself and her children significantly increases.”

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.