News Law and Policy

Iowa Supreme Court Hears Arguments Over Listing of Same-Sex Parents on Daughter’s Birth Certificate

Jessica Mason Pieklo

Heather and Melissa Gartner were legally married in Iowa and had a daughter together, yet the state refuses to list them both as parents on their daughter's birth certificate

The Iowa Supreme Court heard arguments this week in an important case in the fight for marriage and familial equality.

Heather and Melissa Gartner were married in 2009 and later that same year Heather gave birth to their daughter. Heather and Melissa Gartner want both of their names on their now 3-year-old daughter’s birth certificate. The Iowa Department of Public Health denied the request, arguing that Melissa is not a biological parent and therefore cannot be listed on the birth certificate.

Lambda Legal is representing the Gartners in the lawsuit and challenging the state’s interpretation of the law. Their attorney, Camilla Taylor explained this to KCCI News of Iowa “The spousal presumption itself has always meant the spouse of a birth parent is a parent by establishment of law by operation of law. They are an established parent, this holds true if the spouse is not the genetic parent of the child,” said Taylor.

In January a Polk County judge ruled in favor of Heather and Melissa and ordered that the department issue a new birth certificate listing Melissa Gartner as a legal parent. The state immediately appealed.

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

Analysis Law and Policy

Will the Supreme Court Listen to Students About What the Birth Control Benefit Means to Them?

Jessica Mason Pieklo

A brief filed on behalf of individuals affected by efforts to block the contraception benefit in the Affordable Care Act details what's at stake should the Supreme Court rule against the Obama administration's religious accommodation.

The case against the Affordable Care Act’s (ACA) birth control benefit, Zubik v. Burwellis the fourth challenge to the ACA the Supreme Court has heard so far. But for the first time, individuals who depend on the insurance protections in conservatives’ cross-hairs will be able to have their stories heard by the Court directly, during oral arguments in late March. Their testimonies make it clear that stripping the benefit would make accessing care even more precarious—especially for students who become pregnant and find themselves without any accommodations at their institutions.

Zubik is actually a group of cases, each challenging the accommodation available for those religiously affiliated employers who want to opt out of providing their workers insurance coverage for birth control.

Americans United for the Separation of Church and State (AU), a nonprofit legal advocacy organization, successfully intervened as a third party in the contraception challenges on behalf of a University of Notre Dame student in January 2014. The organization recently filed a brief to the Roberts Court on behalf of 240 students, faculty, and staff at religiously affiliated universities—the first of its kind to cite the personal stories of those whose benefits are in danger.

“The voices of affected women have been conspicuously absent from most of the lawsuits seeking to block contraceptive coverage,” said AU’s Senior Litigation Counsel Gregory M. Lipper in a statement following the filing of the brief. “As our brief makes clear, women will suffer concrete and profound harms if religious objectors succeed in blocking their access to vital healthcare.”

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The religiously affiliated institutions challenging the contraception benefit argue that the task of filling out the form to opt out of providing coverage themselves “triggers” or “facilitates” the ability of their employees to get coverage elsewhere. This self-certification process, they claim, makes them “complicit” in the “sin” of facilitating contraception access, in violation of their religious beliefs. But according to the attorneys representing affected students and faculty, the plaintiffs are really arguing for the Court to rule that their religious rights trump the nondiscrimination guarantee built into the contraception benefit.

In other words, the plaintiffs are looking for the Court to grant them the right to exercise their religious beliefs in such a way as to actively and directly harm the rights of third parties like the students, faculty, and employees represented in the amicus brief.

“Whatever views petitioners or others may hold about contraception, they have no right to veto the government’s provision of benefits and thereby to strip these students, faculty, and staff of access to coverage for critical preventive care,” the brief states. “This Court has never before recognized a free-exercise right, under RFRA or otherwise, to so thoroughly undermine the rights of third parties. It should not do so now.”

The brief details the specific challenges already faced by students, employees, and faculty members at religiously affiliated institutions in accessing contraception coverage without discrimination and explains how a ruling against the contraception accommodation would exacerbate those challenges. This is especially true, it says, for students who face unplanned pregnancies. Insurance coverage for abortion services is almost nonexistent. But for those students who decide to continue their pregnancies, the brief says, religious institutions have a long history of refusing to accommodate single, pregnant students.

“Although Title IX of the Education Amendments of 1972 … protects access to educational opportunities for women who are pregnant or have children, compliance is uneven,” the brief states. “Schools often allow professors to set policies for their classes; and some professors refuse to accommodate students who miss deadlines because of pregnancy-related absences.”

“Universities may compound these problems by failing to offer health services and suitable housing for students who are pregnant or have children.”

The brief continues:

And in the last three years, the U.S. Department of Education’s Office for Civil Rights has resolved complaints alleging that colleges have denied pregnant students financial aid, required pregnant students to restart their degree programs after returning from maternity leave, and forced pregnant students to resign or face expulsion.

The combined effect of reduced access to contraception and noncompliance with Title IX’s protections may be especially severe for women at religiously affiliated colleges and universities. That is because Title IX exempts from its requirements “any educational institution which is controlled by a religious organization if the [requirements’] application * * * would not be consistent with the religious tenets of such organization.”

Eligible institutions have received waivers allowing them to expel unmarried students who become pregnant.

That’s right. As AU’s brief makes clear, religious institutions are arguing for the right to deny contraception access to all students, then kick the unmarried ones out of school should they become pregnant.

That’s why AU’s brief and intervention in these cases on behalf of affected students, employees, and faculty is so important. Reproductive rights jurisprudence is dripping with examples of attorneys and judges speaking for patients rather than to patients. Like the personal abortion stories shared in amicus briefs with the Supreme Court in Whole Woman’s Health v. Hellerstedt, hearing directly from those with the most to lose in these cases pushes against hyper-intellectualized narratives that leave real people out of the conversation. Federal judges—almost always men—agonize in opinions about the “difficult choices” women face in terminating a pregnancy. They wax poetic about nonexistent “abortion regret syndrome” and invoke the loftiest of rhetoric to explain why the courts and conservative lawmakers are better equipped to make reproductive health-care choices than women, who just can’t be trusted to negotiate these questions on their own.

Religious conservatives have tried to copy-and-paste those examples from abortion rights cases into the contraception challenges. Instead of pearl-clutching over “potential fetal life,” the religious objectors in these cases are stoking fears of the Obama administration forcing birth control on nuns. But as AU’s brief makes clear, in both the abortion and contraception cases, it really does boil down to the question of trusting women to make medical decisions that are best for them.

“In short, even a single unintended pregnancy may hinder or derail a woman’s opportunity to get an education, advance professionally, and have a career,” the brief states. “While many women will decide to make those sacrifices, contraceptive coverage enables them to decide for themselves whether and when to take on the added burdens.”

But like the never-ending conservative war on abortion rights, the contraception challenges make clear that conservatives will never trust women, as AU puts it, “to decide for themselves whether and when to take on the added burdens” of an unplanned pregnancy. If they did, these institutions would support pregnant and parenting students.

“By allowing women to control the timing and frequency of their pregnancies, reliable contraception has revolutionized women’s ability to make long-term plans about school, work, and marriage, allowing them to achieve personal, educational, and professional goals,” AU’s brief notes.

This truth—that reliable contraception makes women independent of our patriarchal institutions—is at the crux of conservatives’ fears and at the heart of their legal challenges to the ACA.

Analysis Maternity and Birthing

The Parent Gap: Many Challengers of Birth Control Benefit Don’t Offer Parental Leave Either

Sofia Resnick

Many of the employers suing the federal government over the Affordable Care Act’s contraceptive benefit, including Wheaton College in Illinois, fail to offer employees robust parental leave coverage, an analysis by Rewire shows.

Read more of our coverage on challenges to the Affordable Care Act’s birth control benefit here.

After giving birth to her third child last fall, biblical studies professor Amy Peeler took a financial hit in order to stay home with her newborn for nine weeks. Peeler, who is married, teaches the New Testament at Wheaton College in Illinois, one of the religious nonprofits suing the federal government to avoid providing their employees with insurance coverage of certain birth control methods.

Having joined Wheaton’s faculty in 2012, Peeler had not accrued enough sick leave to spend as much time as she wanted with her new baby. Currently, the evangelical college’s policy is for employees to use accrued sick leave hours and short-term disability leave (at a reduced wage rate) to pay for the bulk of their parental leave, said Wheaton’s media relations director LaTonya Taylor, who also noted that Wheaton reimburses faculty up to $10,500 of eligible adoption-related expenses.

Peeler told Rewire that, in the end, she had enough sick time saved up to cover three weeks of her leave; the university granted her three weeks of paid leave so she wouldn’t have to return in the middle of the semester; and she received three more weeks of disability leave at 60 percent of her normal salary. None of these accommodations, however, amounts to a true paid parental leave policy, an entitlement that would apply equally to all employees.

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“I felt very supported by the administration and my fellow colleagues,” Peeler said in a phone interview, about her pregnancy. “But I wish it hadn’t been the case that my family and I had to take a financial hit already in a time when you have lots of expenses with a new baby.”

Many of the employers currently suing the federal government over the Affordable Care Act’s contraceptive benefit fail to offer employees robust parental leave coverage, an analysis by Rewire shows.

Some of these organizations claim to oppose certain contraceptives on the false grounds that they cause abortions. Yet despite their stated commitment to protecting and fostering new life, many of these employers offer only the minimum federally mandated unpaid time off to employees, making it difficult for many families to have children without missing at least a few paychecks.

Wheaton College’s lawsuit against the birth control benefit is among about 100 other cases involving corporations and nonprofits, according to the Becket Fund for Religious Liberty, a nonprofit law firm representing many of the litigants. In late June, the Supreme Court ruled in favor of plaintiffs Hobby Lobby Stores and Conestoga Wood Specialties, deciding the closely held corporations do not have to comply with the birth control benefit due to their sincerely held—but scientifically unsupported—religious beliefs that emergency contraception and intrauterine devices (IUDs) can cause abortions. The remaining lawsuits are pending.

These entities do not offer paid parental leave, according to research by Rewire. Each has been granted an injunction delaying enforcement of the Affordable Care Act’s birth control benefit. Under federal law, employees of these companies may take up to three months of unpaid leave, and can also use their accumulated sick or vacation leave.

About 70 cases have been granted injunctions, meaning employers do not have to comply with the health law requirement while their cases are being litigated. While the majority of plaintiffs involved in these cases did not respond to inquiries into their parental leave policies, Rewire was able to identify the policies of 15 nonprofit plaintiffs, which essentially offer only the federally required unpaid parental leave for employees with newborns (the federal policy is gender-neutral), which in some cases may be supplemented by employees’ unused sick or vacation days. (See sidebar, at left.)

To be sure, paid parental leave in this country is rare. The United States joins a small group of smaller nations—such as Suriname and Papua New Guinea—that do not provide government-funded support for paid parental leave or require employers to offer paid leave following the birth or adoption of a child. And only about 11 percent of Americans who work for private employers are offered paid parental leave, according to the Bureau of Labor Statistics. The federal government does require—through the Family and Medical Leave Act (FMLA)—that employers with more than 50 employees offer up to 12 weeks of unpaid family leave for the birth or adoption of a child. But the employee has to have worked for the company for at least a year and has to have clocked at least 1,250 hours within the last 12 consecutive months. And, as Peeler noted, those without paid leave are losing their paychecks at just the time they are facing greatly increased expenses.

Data show that families benefit financially from paid parental leave and children experience health benefits from having their mothers home for a period following childbirth. In her 2011 Journal of Health Economics article on the effects of unpaid maternity leave on children’s birth and infant outcomes in the United States, economist Maya Rossin-Slater found that “maternity leave led to small increases in birth weight, decreases in the likelihood of a premature birth, and substantial decreases in infant mortality for children of college-educated and married mothers, who were most able to take advantage of unpaid leave.”

But of course, not every family can afford for its sole or co-breadwinner to go without pay for several weeks. Evidence shows unpaid family leave can lead to financial struggle. According to a 2012 report prepared for the U.S. Department of Labor, among those who received partial or no pay while taking FMLA leave in 2012, about a third reported borrowing money, 37 percent reported delaying paying their bills, and about 15 percent reported going on public assistance. (In addition to caring for a new baby or for pregnancy-related reasons, qualified reasons for FMLA leave include caring for oneself or for a sick parent, child, or spouse; caring for sick service members; or for reasons related to a military service member’s deployment.)

Currently only three states—California, New Jersey, and Rhode Island—provide government-supported paid parental leave; thus, the data on its effects on families in the United States are limited. But in a 2013 National Bureau of Economic Research working paper, economists Charles L. Baum and Christopher J. Ruhm argued that California’s policy of six weeks of parental leave at 55 percent of the usual pay—enacted in 2004—shows positive effects on labor outcomes (the state already had an existing disability insurance program that gives mothers access to paid leave following the birth of a child). Baum and Ruhm found that paid leave increased mothers’ employment and wages in the long-term, and had “positive effects … on hours and weeks of work during their child’s second year of life and possibly also on wages.”

Though paid parental leave in the United States is rare, there is a debate going on at Wheaton College over whether the lack of guaranteed paid maternity leave is consistent with the school’s pro-family stance. As with many of the other litigants, Wheaton College is a Christian institution that opposes abortion, as well as certain forms of contraception that it believes are “abortion-causing drugs,” despite evidence that these drugs do not cause abortions. (Wheaton claims to cover some contraceptives in its employee health plans but does not specify which ones.)

It was this stance that drove Wheaton urban studies and politics professor Noah Toly to write Wheaton President Philip Ryken last September, calling out what he saw as a “performative contradiction,” between what Wheaton claims is a pro-family, “pro-life” position, and a policy that makes it difficult for female faculty members both to have children while seeking tenure and excelling in their careers, as reported by the Wheaton Record in October 2013.

“We should offer a fully paid semester of leave,” Toly told the Wheaton Record at the time. “That would put our money where our mouth is concerning family-friendliness and our pro-life position.”

To that end, a small faculty committee has been working with the Wheaton administration toward developing a paid maternity leave policy for faculty. (Peeler told Rewire that many on the committee also recognize the need for a formal paternity-leave policy, but that might not be addressed at this time.) Jillian Lederhouse, who chairs the committee as well as Wheaton’s education department, said the administration contracted with the Education Advisory Board to collect data on parental leave benefits among a wide range of liberal arts colleges. She said the committee is working to present a draft policy proposal to the administration by the end of this semester.

“[T]he college has been looking into this for quite some time, and we seem to be nearing a resolution that should result in an enhanced childbirth leave policy for faculty women,” Lederhouse said in an email. “Both the faculty and administration have recognized the need to improve in this area.”

Peeler said she thinks Wheaton’s stated values should translate to “more supportive” parental leave policies, but she also pointed out that improving its maternity leave policy is essential to improving its gender gap problem within the faculty, which is currently 65 percent men and 35 percent women, according to its current faculty list.

“I’ve heard this in meetings that they would like more of a gender balance on the faculty,” she said, explaining that “in evangelical circles they’re usually skewed male. Typically evangelicals are a bit more conservative, and so women maybe would stay home.”

An improved maternity leave policy would bring Wheaton in line with other organizations that oppose the birth control benefit, and which Rewire has identified as offering more comprehensive, paid parental leave policies. These include Belmont Abbey College in Belmont, North Carolina (which has not yet been granted an injunction), which offers paid leave for mothers but not fathers, outside of sick and vacation days; Dordt College in Sioux Center, Iowa; and the Catholic Archdiocese of St. Louis, which offers employees (or their spouses) 20 days of paid leave following the birth or adoption of a child, after one year of employment. Notably, the Archdiocese explains that this leave policy is “supportive of the Church’s Respect-Life position.”

But even if parental leave policies were improved for many of these organizations, Americans at large lack access to even unpaid maternity leave. Hobby Lobby appears to be among many corporations that offer employees little beyond what is mandated under federal law.

As former Hobby Lobby employee Felicia Allen told Rewire last month, her understanding is that the arts-and-crafts chain only offers unpaid FMLA leave following the birth of a child. However, after only working for five months as a part-time cashier at a Hobby Lobby store in Flowood, Mississippi, a nine-months’ pregnant Allen did not qualify for any leave. She said she was initially reassured she could keep her job after having her baby, but was later told by a supervisor she would be terminated. Allen sued Hobby Lobby for pregnancy discrimination, but her case was dismissed, as she had signed a binding arbitration agreement when she was hired.

Neither Hobby Lobby nor its fellow Supreme Court victor and wood furniture manufacturer Conestoga Wood Specialties responded to requests for information on their parental leave policies.

As the challenges to the contraceptive mandate rage on, it remains to be seen what will come of numerous corporations, universities, and nonprofits potentially making it difficult for employees to access expensive but effective birth control methods and whether that will lead them to enhance their parental leave policies.

Writing for the legal blog Law360 shortly after the Supreme Court’s Burwell v. Hobby Lobby ruling, Dallas attorney Alana Ackels questioned what the fallout of the decision would look like.

“How could failure to provide coverage of these contraceptive methods turn into higher long-term costs for the employer in terms of maternity leave, prenatal care, and postnatal care?” Ackels wrote. “For the employers in Burnwell [sic], the issue was not cost, it was religious beliefs. However, as other employers consider whether to deny health care coverage of certain contraceptives for religious reasons, they should not lose sight of the long-term financial consequences those short-term decisions may have.”

 

Clarification: A prior version of this story stated that Wheaton College “opposes contraception and abortion.” The story has since been clarified to reflect the fact that Wheaton does not object to all forms of contraception, but rather to specific forms that it erroneously claims cause abortion.