She recalled her experience with coming back to work for a local political candidate just ten days after childbirth.
“I was in the car with my candidate with my brand new baby, a first-time mom, and I was driving to a fundraising meeting to shake somebody down for some cash,” Spradlin said. “I mean, I’m still bleeding. So I’m like, well, what pants do I fit into that are black, just in case I bleed through them. And these are not reasonable ways to behave. I mean, postpartum hemorrhage is a true and real cause of death of women.”
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Spradlin is now a lactation consultant, a health-care professional who helps women having trouble breastfeeding. Too often, she said, “trouble breastfeeding” is really just a symptom of a deeper problem—a system that denies too many women the chance to heal and bond with their babies because they can’t afford to take more unpaid time off of work.
Sometimes when women tell Spradlin that they’re having a problem with breastfeeding, she said, the real problem is that they’re working too hard to be able to sit down long enough in a 24-hour period to feed their baby.
“Some of these moms are waitstaff, and they don’t have time to pump their milk, they’re going to be up on their feet, they’re going back to work in two weeks, they’re still bleeding, they’re still having pain from sutures, whether those are perineal sutures or abdominal sutures or both, some of them have pelvic floor problems, they’re urinating on themselves—but they’re going to go stand on their feet for 14 hours to make money?” Spradlin said. “That’s abhorrent. That’s how women die.”
The United States is the only developed nation without some kind of national paid maternity leave, and proposals for national paid family leave aren’t going far in a Republican-dominated Congress. The Family and Medical Leave Act (FMLA) only guarantees workers the right to take up to 12 weeks of unpaid leave without losing their job.
That unpaid leave guarantee doesn’t apply to about 40 percent of working people, however. And for many Americans who are trying to start a family, it’s simply not a financial option to spend one month, let alone three, without earning income.
That financial bind can become a physical nightmare for women, as interviews conducted by Rewire revealed.
Erica Hunter wasn’t able to think about taking more than two weeks to heal from her episiotomy, or to deal with the trauma of almost losing her newborn son during an incredibly difficult delivery.
“They pretty much just split me open, and then had to pull my son out with forceps because everything had gotten so complicated,” Hunter told Rewire. “It was really pretty horrible, but I didn’t have a choice. I had to get back to work or we were going to be homeless.”
She said she was lucky to have a desk job, because it made it easier to convince her doctor to give her medical permission to come back to work.
“It was either beg my doctor for a note to go back to work in two weeks or we were going to lose everything because there was no income,” Hunter said.
The $12 an hour, plus commissions, that Hunter made doing telephone sales for a fitness equipment manufacturer was all that kept her household afloat. She and her partner, who had been out of work for months, had no savings. Her employer didn’t offer paid maternity leave, and she had no access to paid time off or disability since she had worked at the company for less than a year.
She couldn’t move in with her parents because there was no room, and she couldn’t stay with her partner’s parents because they were fundamentalists who disapproved of her having a child out of wedlock.
Hunter said her doctor was “reluctant” to sign off on letting her go back to work after just two weeks, but ultimately understood the financial pressures. Her job was happy to have her back, she said, since she was a top sales associate.
“They were, I guess, as accommodating as you could be, with me having to be in the office 40 miles away from my newborn every day,” Hunter said of her employers.
She said they let her pump breast milk, but she had to do it in a bathroom stall—not the most sanitary environment—and nursing eventually became “impossible” when she was out of the house for 12 hours a day, including the commute.
“It was exhausting,” she said.
Elle Kay (not her real name) said she didn’t get medical approval from her doctor to come back to work after three weeks, but she did it anyway.
“I could barely walk due to a third-degree tear from my clitoris to my cervix,” Kay told Rewire. “I called my boss, and she said as long as I didn’t bleed all over the chair I could come back without a note.”
She had expected to take eight weeks of maternity leave. She was technically a part-time employee but often worked more than 40 hours a week, which her bosses said would qualify her for some partially paid time off.
But the day before Kay left for maternity leave, she was informed that she would only get four hours of paid leave. Kay had saved up a few hundred dollars to supplement what she thought would be a partially paid maternity leave—but a car accident 32 weeks into her pregnancy wiped out those savings, and she had nothing to fall back on when she learned she wouldn’t get paid time off.
While she was “begging” to come back at three weeks so she could make ends meet, she said the experience took a physical toll.
Kay had trouble establishing her milk supply because she could only pump for 20 minutes a day in a filthy employee locker room full of dead bugs and with no chair, which she had to vacate if someone knocked. She had “horrible” postpartum depression from missing her baby and working 14-hour days with no sleep.
“I struggled so much,” she said.
Alana Adams went back to work just seven days after giving birth—seven days that she had spent in the hospital recovering from a c-section and dangerously high blood pressure from postpartum pre-eclampsia.
Adams was in school and working a seasonal job as an emergency medical technician at an amusement park when she had her child. That job didn’t come with any benefits, she said, except “a slightly higher pay rate than the the local barely livable wage.”
“There was no gap between the hospital and work,” Adams told Rewire. “If I had attempted to take any time at all off of work, I would have been replaced immediately.”
She noted that since a c-section cuts through the abdominal muscles, it’s extremely painful to change positions between sitting, standing, and lying down.
“On a day that there wasn’t a lot to do, I could sit most of the day, but if I had to get up in a hurry, I was up the creek,” Adams said. “Most days I just stayed on my feet for 10 or so hours because it was safer than having to try to get up quick.”
Spradlin, the lactation consultant, said that lack of paid leave represents a national failure to care for postpartum women, and thus to care for families.
“When we talk about the cost of health care and the cost of maternity leave and the cost of unemployment insurance, people don’t take the long view of it,” Spradlin said. “Now we have this spiraling out of control of a family unit that isn’t enjoying optimal health because mom had no postpartum recovery period.”
The members of Congress who flocked to the Democratic National Convention in Philadelphia this week included a vocal advocate for the intersection of racial and reproductive justice: Rep. Bonnie Watson Coleman (D-NJ).
Watson Coleman’s longstanding work in these areas “represented the intersection of who I am,” she said during a discussion in Philadelphia sponsored by the Center for Reproductive Rights and Cosmopolitan. Reproductive health-care restrictions, she stressed, have a disproportionate effect on the poor, the urban, the rural, and people of color.
“These decisions impact these communities even more so [than others],” she told Rewire in an interview. “We don’t have the alternatives that middle-class, suburban, white women have. And we’d rather they have them.”
Coleman said she’s largely found support and encouragement among her fellow lawmakers during her first term as a woman of color and outspoken advocate for reproductive rights.
“What I’ve gotten from my Republican colleagues who are so adamantly against a woman’s right to choose—I don’t think it has anything to do with my being a woman or an African American, it has to do with the issue,” she said.
House Republicans have increasingly pushed anti-choice policies in advance of the ongoing August recess and November’s presidential election. The House this month passed the Conscience Protection Act, which would give health-care providers a private right of action to seek civil damages in court, should they face supposed coercion to provide abortion care or discrimination stemming from their refusal to assist in such care.
Speaker Paul Ryan (R-WI) lauded passage of the bill and the House’s thus-far unsuccessful effort to prove that Planned Parenthood profited from fetal tissue donations—allegations based on widely discredited videos published by the Center for Medical Progress, an anti-choice front group that has worked closely with GOP legislators to attack funding for Planned Parenthood.
The Hyde Amendment’s restriction of federal funding for abortion care represents a particularly significant barrier for people with low incomes and people of color.
The Democratic Party platform, for the first time, calls for repealing the Hyde Amendment, though the process for undoing a yearly federal appropriations rider remains unclear.
For Watson Coleman, the path forward on getting rid of the Hyde Amendment is clear on at least one point: The next president can’t go it alone.
“The president will have to have a willing Congress,” she said. She called on the electorate to “recognize that this is not a personality contest” and “remove some of those people who have just been obstructionists without having the proper evidence.”
In the meantime, what does a “willing Congress” look like for legislation with anti-choice roadblocks? A majority voting bloc helps, Watson Coleman said. But that’s not everything.
“There are lots of bills that Republicans will vote for if their leadership would simply bring them up,” she said.
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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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 attemptsto challengebans 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.