News Law and Policy

ACLU Asks Federal Appeals Court to End Religious Restrictions on Reproductive Health Care for Trafficking Victims

Jessica Mason Pieklo

Attorneys for the ACLU went before the First Circuit Court of Appeals to prevent Catholic Bishops from denying reproductive health care to human trafficking victims.

On Wednesday the American  Civil Liberties Union and the ACLU of Massachusetts went before a federal appellate court to argue that the Department of Health and Human Services (HHS) can’t impose religiously-based restrictions on reproductive health services for victims of human trafficking.

The arguments were in the case of ACLU of Massachusetts v. Sebelius, a challenge to HHS’ distribution of program funds authorized by the Trafficking Victims Protection Act to the U.S. Conference of Catholic Bishops (USCCB). The Trafficking Victims Protection Act provides funds to cover an array of services needed by thousands of individuals, many of whom are women, who are brought into the United States annually and exploited for their labor, including sex trafficking who are raped and abused. Pregnancies as a result of rape and sexually transmitted infections are common among victims of sex trafficking which makes access to testing and treatment of STIs, contraception, and safe abortion care critical for many trafficking victims.

From April 2006 to October 2011, (HHS) has awarded the USCCB anywhere from $2.5 million to $4 million annually to fund organizations that provide direct services to trafficking victims under the federal Trafficking Victims Protection Act. According to the ACLU, HHS does this knowing that based on its religious beliefs, the USCCB prohibits grantees from using any of the federal funds to provide or refer for reproductive health services of any kind.

In January 2009, the ACLU asked a federal court in Massachusetts to require HHS to ensure that taxpayer funds distributed through the Trafficking Victims Protection Act are not used to impose religiously-based restrictions on reproductive health services. In March 2012, the court granted that request and ruled that a religious institution does not have the right to use taxpayer money to impose its beliefs on others. The bishops and the federal government’s appealed to the First Circuit.

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It’s an unusual position for the Obama administration to be, as it is, on the same side of the Bishops in this case, with the exception of one key point. In its briefing the government made it clear that it was not making a religious accommodation by awarding the contracts to the USCCB because, the government claims, it simply chose the best bidder for the contract and that the USCCB conscience objections are simply the price it must pay to have these funds distributed and services provided.

“We’re hopeful the appellate court with affirm the district courts holding that we cant allow the government to deny services to a vulnerable population in the name of religious beliefs”  Brigitte Amiri, senior staff attorney with the ACLU Reproductive Freedom Project told Rewire.

A ruling in the case is not expected for several months.

Analysis Law and Policy

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

Jessica Mason Pieklo

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

News Health Systems

Anti-Choice Group Files Lawsuit Over Newly Signed Law That Protects Illinois Patients

Michelle D. Anderson

The policy, which is an amendment to the Illinois Health Care Right of Conscience Act, requires physicians and medical facilities to to provide patients upon request with information about their medical circumstances and treatment options consistent with "current standards of medical care," in cases where the doctor or institution won’t offer services on religious grounds.

CORRECTION: This piece has been updated to clarify the scope of SB 1564 and which groups are opposing it.

A conservative Christian legal group has followed through on its threat to use litigation to fight against a new state policy that protects patients at religiously-sponsored hospitals in Illinois.

The Alliance Defending Freedom (ADF) on Friday filed a lawsuit in the Circuit Court of the 17th Judicial Circuit in Winnebago County against Illinois Gov. Bruce Rauner and Bryan A. Schneider, the secretary of the Illinois Department of Financial & Professional Regulation.

Rauner, a Republican, signed the contested policy, SB 1564, into law on July 29.

The ADF, which warned Rauner about signing the bill in a publicized letter and statement in May, filed the complaint on behalf of several fake clinics, also known as crisis pregnancy centers. These included the Pregnancy Care Center of Rockford and Aid for Women, Inc. Anti-choice physician Dr. Anthony Caruso of A Bella Baby OBGYN—also known as Best Care for Women—was also named as a plaintiff.

“Alliance Defending Freedom is ready and willing to represent Illinois pro-life pregnancy centers if SB 1564 becomes law,” the group said in May. The ADF wrote on behalf of several anti-choice groups, claiming SB 1564 violated the Illinois state law and constitution and risked putting federal funding, such as Medicaid reimbursements, in jeopardy.

In February 2015, state Sen. Daniel Biss (D-Skokie) introduced the policy, which is an amendment to the Illinois Health Care Right of Conscience Act.

The revised law requires physicians and medical facilities to provide patients upon request with information about their medical circumstances and treatment options consistent with “current standards of medical care,” in cases where the doctor or institution won’t offer services on religious grounds.

The new policy also gives doctors and medical institutions the option to provide a referral or transfer the patient.

Unlike an earlier version of the legislation, the version passed by Rauner does not require hospitals to confirm that providers they share with patients actually perform procedures the institutions will not perform; they must only have a “reasonable belief” that they do, Rewire previously reported.

As previously noted by Rewire:

Catholic facilities often follow U.S. Conference of Catholic Bishops religious directives that generally bar treatments such as sterilization, in vitro fertilization, and abortion care. The federal Church Amendment and some state laws protect these faith-based objections.

The plaintiffs, which are also being represented by Mauck & Baker LLC attorney Noel Sterett, argued in a statement that the Illinois Constitution protects “liberty of conscience,” and quoted a passage from state law that says “no person shall be denied any civil or political right, privilege or capacity, on account of his religious opinions.”

Illinois Right to Life and the Thomas More Society joined the ADF in protesting the bill. The Catholic Conference of Illinois (CCI) and the Illinois Catholic Health Association (ICHA) initially protested the bill after it was introduced early last year. However, the two groups later negotiated with the ACLU to pass a different version of the bill that was introduced.

In support of the bill around the time of its introduction in early 2015, the American Civil Liberties Union of Illinois pushed its Put Patients First initiative to help stop the use of religion to deny health care to patients. The advocacy group noted that patients who are miscarrying or facing ectopic pregnancies, same-sex couples, and transgender people and persons seeking contraception such as vasectomies and tubal ligations are particularly vulnerable to these harmful practices.

A new study, “Referrals for Services Prohibited in Catholic Health Care Facilities,” set to be published in Perspectives on Sexual and Reproductive Health in September, suggested that Catholic hospitals often “dump” abortion patients and deny them critical referrals as result of following religious directives outlined by the U.S. Conference of Catholic Bishops (USCCB).

Recent figures from an ACLU and MergerWatch advocacy group collaboration suggest Catholic hospitals make up one in six hospital beds nationwide.

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