Culture & Conversation Abortion

Leading During Hostile Times: A Conversation With Yamani Hernandez and Nikki Madsen

Rewire Staff

The executive directors of the National Network of Abortion Funds and the Abortion Care Network discuss the challenges and opportunities they have faced so far as leaders of abortion access organizations in the context of one of the most hostile cultural and political climates since the landmark Roe v. Wade decision in 1973.

In this exchange, Yamani Hernandez, executive director of the National Network of Abortion Funds, and Nikki Madsen, executive director of the Abortion Care Network, discuss the challenges and opportunities they have faced so far as leaders of abortion access organizations in the context of one of the most hostile cultural and political climates since the landmark Roe v. Wade decision in 1973.

The two leaders also highlight the importance of working across movements to build momentum around expanding abortion care. “In order to rise above the challenges that 2016 will surely present, we will need to continue to work with and alongside movements like Black Lives Matter and Fight for $15, in addition to lifting up abortion care providers and seekers across the country,” said Hernandez.

Madsen added: “Working in partnership and building bridges across movements for health, rights, and justice, and prioritizing the voices and needs of those who face the greatest injustice, will create the kind of robust and broad movement that may finally be effective in confronting the root of our collective oppression, and actually achieve the goal of true reproductive justice.”

Rewire: What brought you to a movement seeking unrestricted access to abortion?

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Yamani Hernandez: I came to the abortion-specific movement because, among other things, I was frustrated with the messaging around abortion, which I felt didn’t necessarily represent my abortion experience and was not super accessible to people in the various communities I come from. I was also frustrated with how dangerous parental involvement laws were seemingly a low priority within the broader movement. “Pro-choice” people will often shy away from advocating for young people’s unfettered access to abortion. Young people are not offered comprehensive sexuality education; birth control is hard to get; and then, if a young person becomes pregnant, they are shamed for parenting and shamed for attempting to access abortion services. I really viewed my arrival to this movement as a way to change it from the inside.

Nikki Madsen: I think a culmination of many moments in my life brought me to this movement and have kept me here for more than a decade. My parents holding open and frank conversations with me about sex; my two step-siblings becoming pregnant and parenting in their teens; volunteering for the National Organization for Women and Planned Parenthood as a young adult; having women’s studies and sociology professors who believed in me; taking a “history of the fetus” course in graduate school (best class ever!); volunteering as a clinic escort at a local, independent abortion care clinic; learning about my grandmother’s pre-Roe abortion; facilitating an after-abortion support group for many years and helping people access financial resources for abortion care in my prior job at Pro-Choice Resources; and planning and creating a family of my own have all shaped the person I am today and my commitment to this essential human rights work.

Rewire: What challenges do you see the movement confronting in 2016?

YH: There’s no denying that we are in a tough climate right now. While we’ve made some great strides forward in 2015, the year was also marked by attacks on abortion providers, TRAP laws, the continuation of the Hyde Amendment—which bans Medicaid coverage of abortion—and stark racism. The election is likely to set the tone for many of our health-care rights, from the Affordable Care Act to protections for or restrictions on abortion, and a lot is at stake. After five years of increased restrictions, we need more elected leaders to speak up for abortion access. Whether we’ll see that in 2016 or in the years that follow is unpredictable, and it’s hard to know whether we’re close to some much-needed victories for low-income people and people of color, or whether we’ll have to struggle more than ever to exercise our basic human rights. The safety of those seeking and providing abortions, the ability to afford health care, and the safety of communities of color are issues integral to the success of the movement. In order to rise above the challenges that 2016 will surely present, we will need to continue working with and alongside movements like Black Lives Matter and Fight for $15, in addition to lifting up abortion care providers and seekers across the country.

NM: It sure would be nice to think that the New Year would bring a respite from the constant challenges of 2015. We all have anxious eyes on the Supreme Court. If the Court rules in favor of Texas’ omnibus abortion law, HB 2, we will see access diminish as more clinics are forced to close their doors, and emboldened legislatures pass more and farther-reaching laws that make it difficult, if not impossible, for people to receive the care they need. We are hopeful that the Court will see the injustice and unconstitutionality in HB 2 and strike it down, but even if it does we are likely to see a continued onslaught of attacks from anti-choice extremists. The dynamics of an election year are likely to escalate already elevated rhetoric against providers and people who seek abortions, which we will see playing out not only in legislatures, but on the streets in front of clinics. I also believe we will continue to see the prosecution of pregnant people for everything from drug use to miscarriage. Attacks on pregnant people are unlikely to stop.

Rewire: What is your hope for bridging intersections between movement leaders, and in what ways do you think intersectionality brings strength to the movement?

We show up for movements that affect those seeking abortions because we don’t lead one-issue lives, and there are many ways we can make real progress in abortion accessibility by supporting economic and racial justice initiatives.

YH: My hope lies in building authentic relationships and integrating our work based on the ways that actual lives are lived. For instance, when people call abortion funds because they have to choose between paying for rent or paying for health care, there’s not only an economic issue but a housing issue. Intersectionality brings strength to the movement because advocates don’t have to sacrifice other aspects of our identity and experience in order to do this work. We know that advocates’ personal experiences actually inform the work they do, and people can bring their whole selves to work when we start connecting abortion access with other political and social needs. Activists from different movements are stronger together, and we can’t keep preaching to the choir. We need more people speaking up and rejecting the status quo, across lines of race, class, gender, geography, and issue area. We show up for movements that affect those seeking abortions because we don’t lead one-issue lives, and there are many ways we can make real progress in abortion accessibility by supporting economic and racial justice initiatives. Abortion rights activists have been showing up for Fight for $15, with national office staff members in Boston and Madison marching in solidarity with low-wage workers, demanding a $15 minimum wage and the right to unionize. We have also made efforts to lift up this issue up in our online and offline communications with supporters and constituents. Since then, we’ve been proud to see the Fight for $15 movement talk about reproductive rights in the context of economic justice. It’s been great to be able to lift one another up.

NM: After the gravity of the challenges we face, this is where I find hope. While Abortion Care Network is obviously focused on abortion care, we know that abortion occurs within the context of people’s lives, where there are many layers of concerns and injustices at play. People’s need for abortion care is wrapped up in their desire for healthy and safe families and communities. Abortion is the exercising of the basic human rights to self-determination and bodily autonomy. We must recognize that the threats to family and community, and the assaults on those basic human rights, are multifaceted and hit people—especially LGBTQ people and people of color—from many directions and in many layers. When we see the struggle for justice in its full frame, and don’t just focus on our own little piece, we can create a more powerful and unified front against our common oppressors. In fact, it’s the only way we can. Working in partnership and building bridges across movements for health, rights, and justice, and prioritizing the voices and needs of those who face the greatest injustice, will create the kind of robust and broad movement that may finally be effective in confronting the root of our collective oppression, and actually achieve the goal of true reproductive justice. It is heartening to see a new generation of activists and organizations leading us in that direction.

Rewire: How do you think the reproductive rights movement should go about investing in new leaders?

YH: I think there are two crucial ways we can invest in new leaders. First, “new” leaders can be younger leaders and sometimes “new” leaders can be people outside of the existing movement. I think that we should invest in explicit succession plans that free up space for new people to join. It would be great for new leaders to have a standard movement-wide orientation that informs them about our history, our opposition, and the unique aspects of doing our work. Second, I could envision a formal executive director support group that these new leaders are brought into. Individual coaching is great, but group coaching could also be really useful. Taking the time to listen to the unique perspectives of each individual could be an essential part of this investment and I can envision this taking place very effectively in a group setting. Drawing strength from the relationships and dialogue we have with one another, “each one reach one” will strengthen not only each individual leader but also the movement as a whole.

NM: Oh how I wish I had the answers. I do think identifying people who will serve as movement mentors for new leaders is essential. And a support group would be lovely. I do know for certain that it’s essential we think beyond our traditional pathways to leadership and structural supports that favor already privileged people. I think much like raising a child, it’s all about your support system. I’m lucky that my position at Abortion Care Network came with a built-in support system, a network comprised of experts and compassionate individuals who allowed me to ask questions and brainstorm ideas. They have lifted me up on the toughest days. For example, just a few weeks before the Colorado shootings at Planned Parenthood, Jamar Clark was shot and killed by police officers in my hometown of Minneapolis. These two tragedies happening so close to one another left me emotionally and physically exhausted as I tried to balance my work demands, commitments to my broader human rights community, and my family. Cristina Aguilar, executive director from COLOR, reached out to me in response to my public statement on the Colorado shootings and offered support—that simple gesture made all the difference in the world.

Rewire: Reflecting on Roe v. Wade, how would you describe what has been happening since it became law, and what is your vision for reclaiming any rights we have lost?

YH: Among many other things, we’ve seen anti-choice lawmakers try literally anything to obstruct access to abortion. We’ve seen waves of clinic closures, steadily increasing numbers of people forced to carry their pregnancy to term against their will, and youth-targeted anti-abortion laws that exist in states that are otherwise progressive when it comes to reproductive health and sex education. Abortion has been stigmatized, racialized, and criminalized to the point that a person can’t have a miscarriage without facing the potential for incarceration, particularly if they are a person of color. Simply put, having something legally on the books and how it actually plays out are entirely different things.

My vision is that all people not only have reclaimed rights but also the resources and recognition to thrive. That means that they can afford the families they want and that they are safe. It also means that they can afford their health care, that it’s in close geographic proximity to them, that it is compassionate health care, and that they don’t have to wait forever to get it. Though the climate is challenging, we are seeing an impressive and powerful wave of people saying, “Enough!” Across the United States, leaders are rising to the challenge, and more and more people continue to join our movement every day. That’s in no small part due to the efforts of member funds on the ground, and providers, and those seeking abortions, telling their experiences and declaring that abortion will not continue to be a health-care option for only those with economic resources. We’re refusing en masse, and people are awake and angry because abortion is a fundamental societal good. We can’t afford to keep going back, and the urgency is spreading like wildfire.

… we must be bold in our language, unafraid to speak openly, proudly, and without defensiveness about the nature of abortion and the positive role it plays in the health and well-being of people, families, and communities.

NM: There just isn’t a simple answer to this question, but there is no doubt that we have lost ground, and I believe that is owed to a movement that has been too narrow in its focus, and too afraid to speak our truth. We have focused primarily on a narrow definition of the right to privacy and to choose, and have used language that both stigmatizes (i.e., “safe, legal and rare,” “no one is pro-abortion, we are pro-choice,” etc.) and lacks the complexity of people’s feelings about abortion. The result has been a movement that has been too quick to accept narrow political victories at the expense of broader justice and access, one that has failed to speak effectively to a broad cross-section of the U.S. public, and that may have contributed to the prevailing silence that exists around the abortion experience. Meanwhile our opponents’ attacks have been broad and their rhetoric bold. When they have been unable to attack the basic isolated right we have protected, they have effectively chipped away at access, disproportionately impacting the most marginalized people and targeting providers, which has weakened our movement at its very base. Our opponents have also effectively spoken to people’s emotions and have systematically shamed and silenced the millions of people who have had abortions. I believe the route forward lies in a broad, intersectional movement that recognizes abortion not as an isolated right, but as a piece in a broader puzzle of justice, and in a unified and coordinated movement for justice. I also believe we must be bold in our language, unafraid to speak openly, proudly, and without defensiveness about the nature of abortion and the positive role it plays in the health and well-being of people, families, and communities.

Rewire: With the case challenging HB 2 (Whole Woman’s Health v. Cole) at the Supreme Court, what is most important for advocates to lift up in conversations about the case?

YH: In the Supreme Court case, Whole Woman’s Health is challenging parts of HB 2: the regulations that require abortion clinics to make massive upgrades to convert their clinics to ambulatory surgical centers, or mini-hospitals, and admitting privileges at local hospitals for abortion providers. Fighting these regulations is extremely important in maintaining access to abortion care across the country, but we must remember that if we win the case, it’s only a bandage on the broader issue. Our callers in Texas, and across the country, will still have an extremely challenging time saving money to pay for their abortion or finding a clinic that they can travel to. They will still have to take time off of work, unpaid, because their jobs don’t offer sick leave. They might risk their immigration status to travel hundreds of miles for an abortion. They’ll have a hard time finding someone to care for their children while they make the multi-day trip to an abortion clinic, or won’t even make the trip because the logistics are too challenging. This case is very important, and we must remember that politicians have put so many barriers in the way that abortion access is becoming nearly impossible for those without economic resources.

NM: It is pretty simple: HB 2 and similar laws are thinly veiled attempts to shut the doors of abortion clinics and limit abortion care. These laws, enacted under the guise of protecting women’s health through stringent regulation, actually do the exact opposite. When clinics are forced to comply with regulations that fall outside of the standards for all other medical facilities, and that are intentionally so expensive and onerous that compliance is difficult if not impossible, many of them will be forced to close their doors. This will leave great numbers of people in this country without access to abortion care, which we know from looking around the world and throughout history is a real and dire threat to people’s health and lives.

Rewire: In 45 amicus briefs sent to the Supreme Court, many people shared their personal abortion stories. Why do you think they chose to share something so personal with the Court?

YH: People want to share their abortion stories because they want to stop the undue burdens put upon us by the state. If abortion is legal, it should not be so hard to access it. People who have abortions aren’t “victims.” Folks want to share their stories because they are taking back the narrative and showing both their resilience and also that enough is enough. They’re hoping that the listener will leave the conversation with a deeper and more complex understanding of abortion. I believe this is what the storytellers are doing in their briefs. They’re asking the Court to understand why access to abortion was so profound and important in their lives, and to maintain that care across the country.

In one of the interviews for our amicus brief, a 31-year-old Texas woman named Courtney asked if the Court wanted to know why she was having an abortion. Courtney explained, speaking about her existing family and children, “Sometimes you don’t know where your next meal is going to come from or how you’re going to pay this bill or [how you’re going to save money] to make sure they eat.” She said she’d rather have an abortion “than bring another kid into the world and make them suffer.” It’s people like Courtney who want the Court to hear their stories. They are doing their best to make their voices heard and speak up about why they decided an abortion was the right decision for them; and in Courtney’s case, it’s because she wants to ensure she is able to provide for her three children. She loves them deeply and she wants the Court to know that abortion was the best decision for her and her family.

NM:  Abortion is such a normal and common experience. And yes, it is personal, but the idea that it is something we don’t or shouldn’t talk about is part of the stigma that has been placed on people, not necessarily a universal instinct that abortion need be private. I think there is a growing frustration among people who have had abortions that their experience is both broadly misrepresented in the prevailing public dialogue, and that it is being used to take away from others the necessary access to care. In recent years, organizations dedicated to combating stigma and individuals aided by online communities and social media have created a groundswell of sharing of abortion stories. I feel a growing recognition of the power of those collective stories and resistance of that stigma and silence. Those briefs were powerful and have impact, hopefully with the Court, but also with the public. As a movement we must harness that power, but also effectively support those who are able and willing to share their stories and the personal contribution they have made.

Rewire: The restrictions placed on abortion providers by HB 2 pose a threat to safe and legal abortion access in the state of Texas. What are the national implications of the law?

A threat to legal abortion access in any state is a threat to legal abortion access in every state.

YH: Texas is the largest state where we’ve seen these harsh laws, but the laws are by no means isolated. Neighboring states like Louisiana all the way through the deep South also are losing clinics and creating a sparse patchwork of access. On the other side, we see New Mexico having to absorb a wave of overflow. During the period when HB 2 was being enforced, our Texas abortion funds reported callers having long wait times and many having to forgo their abortions due to time and logistical constraints. Our member funds in the South have had to expand to offer practical support like travel and lodging assistance when there was already not enough resources to pay for abortion procedures. It’s straining the safety nets we’re already struggling to hold together and leaving millions without affordable, accessible abortion care. Which is 100 percent the goal of those passing these laws. If HB 2 is allowed to stand, we can expect an almost immediate wave of copycat laws across the South and Midwest, creating a truly stark divide in the ability to get an abortion in the United States. A threat to legal abortion access in any state is a threat to legal abortion access in every state. We can’t sit by and watch that happen there. It’s unacceptable.

NM: Currently, 1.5 abortion care clinics are closing each week in the United States. And according to Abortion Care Network’s internal numbers, since 2005, almost half of independent abortion care providers, who provide the majority of abortion care in this country, have closed their doors. There is no coincidence that these closures have coincided with the repeated passing of sham laws (like those in HB 2) from state to state, which place restrictions on abortion care clinics and providers and do nothing to protect women and people in need of abortion care. If the Supreme Court accepts the lower court ruling, we will see many more abortion clinics close their doors. And although abortion will technically still be legal under Roe, with each legislative session it will slowly become even more inaccessible for people living anywhere other than the coasts.

Rewire: You both started in May, and the Planned Parenthood videos and the cyber attacks both came in July. How has it felt to be hired for one thing but have to navigate to do something totally different, like security?

YH: It is exceedingly difficult. As a new leader with an organization in transition, dealing with operational challenges like security can really compromise more mission-driven work. We’ve had insurance companies tell us they will not cover us for workers’ compensation because we work on abortion, and that covering our employees is a liability. Last week I came close to signing an office lease, only for the landlord to tell me that they will not rent to us. At such a politically hostile time, running an organization with abortion explicitly in its name has been a bit of a storm. I’m just trying to do my job and build the power of our member organizations. I wasn’t prepared for this, personally or organizationally—I think I’ve needed a different kind of support and I don’t entirely know where to get it. I received a lot of support from my staff, and we were still building our team at the time. Planned Parenthood also offered security support, and a couple of funders responded and assisted with funding so we could research solutions. We are continually strengthening our cyber security, and we’ll be working with our network to build theirs as well.

Recently a friend said to me, “It seems like the worst time in history to become an executive director of a national abortion rights group.” He must have sensed my response, because he quickly followed with, “Or maybe it’s the best?”

NM: Recently a friend said to me, “It seems like the worst time in history to become an executive director of a national abortion rights group.” He must have sensed my response, because he quickly followed with, “Or maybe it’s the best?” All of us working in the reproductive rights, health, and justice movements have felt as if we have been on a roller coaster ride over the past few six months—because we have. On days where I long to do the proactive work I was hired to do, but instead find myself responding to the new crisis, I focus on abortion care providers, clinic owners, movement allies, and people in need of abortion care and it inspires me to push forward. Well, that and red wine.

Rewire: When Planned Parenthood is under attack we are all under attack, but all of us don’t have the same resources as the national health-care organization. How do groups and leaders in the reproductive rights movement navigate this?

YH: Larger organizations really need to take smaller ones into the fold when they are dealing with a problem that impacts everyone. Some of this has happened with Planned Parenthood, but in general, there are tons of operational challenges that most of us organizations are not talking about as a group. Our victory is only possible when we are all working to our highest potential in our area of this movement, when we’re building power on a local and grassroots level. While different organizations have varying levels of resources, we’re all critical to long-term success, and we all have our own specialities and areas of expertise. In this historic moment, when we’re under constant attack, but also seeing higher levels of support than ever, we can channel so much passion into this fight. I know that we will win because we are fighting for a social good, but it will take all of us working together.

NM: Many organizations are necessary to create a healthy ecosystem of abortion care in this country. To truly reach this goal, organizations and leaders within the movement need to find better ways to share resources and support one another—especially the smallest and most under-resourced groups that are often serving the most marginalized communities. It’s essential that we create safe spaces to talk about our organizations’ vulnerabilities with our colleagues and how we can cost-share or support one another to fill the gaps. Equally important is that we encourage our own supporters to give and learn about the essential work of our colleagues. No matter how well resourced or under-resourced we are, we must at all times keep the big picture of a “healthy ecosystem” in the forefront of our mind and work toward that goal.

CORRECTION: This article has been updated to reflect the timeline of the release of attack videos against Planned Parenthood.

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.

News Politics

Democratic Party Platform: Repeal Bans on Federal Funding for Abortion Care

Ally Boguhn

When asked this month about the platform’s opposition to Hyde, Hillary Clinton’s running mate Sen. Tim Kaine (D-VA) said that he had not “been informed of that” change to the platform though he has “traditionally been a supporter of the Hyde Amendment.”

Democrats voted on their party platform Monday, codifying for the first time the party’s stated commitment to repealing restrictions on federal funding for abortion care.

The platform includes a call to repeal the Hyde Amendment, an appropriations ban on federal funding for abortion reimplemented on a yearly basis. The amendment disproportionately affects people of color and those with low incomes.

“We believe unequivocally, like the majority of Americans, that every woman should have access to quality reproductive health care services, including safe and legal abortion—regardless of where she lives, how much money she makes, or how she is insured,” states the Democratic Party platform. “We will continue to oppose—and seek to overturn—federal and state laws and policies that impede a woman’s access to abortion, including by repealing the Hyde Amendment.”

The platform also calls for an end to the Helms Amendment, which ensures that “no foreign assistance funds may be used to pay for the performance of abortion as a method of family planning.”

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Though Helms allows funding for abortion care in cases of rape, incest, and life endangerment, the Obama administration has failed to enforce those guarantees.

Despite the platform’s opposition to the restrictions on abortion care funding, it makes no mention of how the anti-choice measures would be rolled back.

Both presumptive Democratic nominee Hillary Clinton and Sen. Bernie Sanders (I-VT) have promised to address Hyde and Helms if elected. Clinton has said she would “fix the Helms Amendment.”

Speaking at the Iowa Brown and Black Presidential Forum in January, Clinton said that the Hyde Amendment “is just hard to justify because … certainly the full range of reproductive health rights that women should have includes access to safe and legal abortion.” In 2008, Clinton’s campaign told Rewire that she “does not support the Hyde amendment.”

When asked this month about the platform’s opposition to Hyde, Clinton’s running mate Sen. Tim Kaine (D-VA) said in an interview with the Weekly Standard that he had not “been informed of that” change to the platform though he has “traditionally been a supporter of the Hyde amendment.”

“The Hyde amendment and Helms amendment have prevented countless low-income women from being able to make their own decisions about health, family, and future,” NARAL President Ilyse Hogue said in a statement, addressing an early draft of the platform. “These amendments have ensured that a woman’s right to a safe and legal abortion is a right that’s easier to access if you have the resources to afford it. That’s wrong and stands directly in contrast with the Democratic Party’s principles, and we applaud the Party for reaffirming this in the platform.”