Analysis Law and Policy

Businesses in St. Louis Take Another Swing at Reproductive Rights

Lisa Needham

Entities in St. Louis are arguing they have the right to dictate employees' personal choices when it comes to abortion, contraception, and pregnancy.

Earlier this year, St. Louis, Missouri, passed an ordinance banning landlords and employers from discriminating against people based on their reproductive health choices. Now, a group of St. Louis businesses have sued, claiming that the law forces them to approve of or facilitate abortions. They’re wrong, but that won’t stop them from ceaselessly trying to further restrict reproductive rights in an already difficult area.

In Missouri as a whole, abortion access is sparse, with only one clinic remaining; in order to obtain abortions, many women have to travel out of state. The state mandates biased counseling and a 72-hour waiting period. A new law cuts off certain federal funds to all organizations that provide abortions, even hospitals. Private insurance companies only cover abortion in cases of life endangerment, or with an additional rider; state employees have no such rider option. Amidst all this, St. Louis serves as a limited place of respite, thanks to attempts to enact an abortion clinic buffer zone and the anti-discrimination ordinance.

Both of these have infuriated anti-choice activists and conservative Christian businesses. While they battle the buffer zone in the court of public opinion, they’re battling the anti-discrimination ordinance in the courts. They’ve brought out every type of possible plaintiff and alleged violations of a host of laws, all in the hopes that something will stick. Unsurprisingly, the Thomas More Society, which works ceaselessly to restrict reproductive health rights and access, is representing the plaintiffs. The complaint seeks declaratory relief—in other words, none of the plaintiffs are alleging that any harm has come to them yet. They’re saying that harm will come to them if the ordinance is enforced, so they’re seeking a judicial declaration that the ordinance is invalid.

As an overarching concern, the complaint contends the ordinance does not conform to Missouri’s vague “right-to-life” law: a so-called trigger law that states that “it is the intention of the general assembly of the state of Missouri to grant the right to life to all humans, born and unborn, and to regulate abortion to the full extent permitted by the Constitution of the United States, decisions of the United States Supreme Court, and federal statutes.”

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The anti-discrimination ordinance, it is clear, does no such thing. Protecting people from employment and housing discrimination does not touch or undercut Missouri’s restrictions on abortion availability. In fact, it does nothing to lessen those brutal restrictions at all.

The complaint also raises a host of other (wholly expected) causes of action—that the ordinance is a violation of due process, of free speech, of the right to association. All of them boil down to the same thing, however: Entities in St. Louis that are not religious institutions under the law would like to behave as if they are.

From news reports, you might think that the St. Louis Archdiocese itself has sued the city, but that isn’t the case. That is likely because the ordinance creates an exemption from certain requirements for religious institutions, corporations, associations, societies, health-care facilities, and educational institutions with a history of religious affiliation. In fact, there are four plaintiffs: the Archdiocesan Elementary Schools of the Archdiocese of St. Louis; Our Lady’s Inn, a “maternity home”; O’Brien Industrial Holdings, a closely held mining and manufacturing corporation that says its goal is to “make our labor a pleasing offering to the Lord”; and its owner, Frank O’Brien. All of them insist that the ordinance will prevent them from conducting their business as they see fit.

The Archdiocesan Elementary Schools, as an educational institution that has historically been affiliated with a church, are, in fact, exempt from certain aspects of the ordinance. Other organizations in St. Louis now cannot prohibit the provision of reproductive health services on their property, cannot refuse to provide or pay for reproductive care, or refuse to provide health insurance for reproductive health care. Because the schools are exempt, they don’t have to provide any funds or space that would go, even indirectly, towards any reproductive health services.

The schools have joined the lawsuit because they make all of their employees sign a “witness statement” that they will not publicly support abortion and will “live in harmony” with the teaching of the Catholic faith in their personal and professional lives. They wish to be able to enforce that statement and bar people in their employ from engaging in constitutionally protected activities like obtaining an abortion or birth control. This law would indeed block them from such a thing, and it should. The sponsor of the ordinance, 15th Ward Alderwoman Megan-Ellyia Green, has explained that it would still allow (regrettably) an employee to be fired for taking a public stance, but as an employer, the Archdiocesan Elementary Schools should not be allowed to police private behavior.

Our Lady’s Inn is a nonprofit residential maternity home. It provides housing, counseling, and support to pregnant women, but only those who intend to carry the pregnancy to term. It also provides transitional housing for women that have given birth. It states that it explicitly will not house a pregnant woman who plans to have an abortion or who has recently had an abortion. It also leases space to employees who supervise the pregnant residents. It is not a religious corporation exempted from parts of the ordinance, even though it would like to insist that their anti-choice mission makes them a religious entity.

Our Lady’s Inn alleges that if it had to house or employ women who have pro-choice views or who are pregnant yet contemplating terminating their pregnancy, it will be in violation of Missouri’s Alternatives to Abortion Act. If an organization receives money under that program, which Our Lady’s Inn does, it cannot use those funds to “perform or induce [or] assist in the performing or inducing of or refer for abortions.” This is, of course, patently absurd. If Our Lady’s Inn were legally prohibited from refusing employment to someone who was pro-choice, that doesn’t mean that it is assisting with actually procuring an abortion. And in fact, Alderwoman Green stated explicitly that the anti-discrimination law wouldn’t limit an organization from firing an employee who takes a public stand that is anathema to the organization’s purpose. Again, says Green, the law simply ensures that employers cannot intervene in the personal reproductive health choices of their employees.

The maternity home also says that complying with St. Louis’ anti-discrimination act would require it to violate another Missouri statute that says that no person or institution can be discriminated against under the grounds they refuse to have an abortion or refuse to advise, consent to, assist in, or perform an abortion. However, that section of the Missouri law only applies to hospital and medical personnel, which is not what Our Lady’s Inn is. In short, Our Lady’s Inn raises a lot of concerns that don’t apply to it at all, all in an attempt to get itself and others outside the purview of the ordinance.

Finally, Frank O’Brien and O’Brien holdings, as a closely held corporation dealing in mining and manufacturing, are not even tangentially a religious institution. Nevertheless, they seek to frame themselves as a “faith-based employer” that should be covered by the religious exceptions to the ordinance. It makes an equal protection claim, alleging that it is being treated differently from those religious employers. This is actually true—it is, and it should be. There’s no “protected class” for employers to impose a theistic worldview on their employees.

Lost in all the noise here is that this ordinance doesn’t just protect those people who seek abortions, birth control, or other forms of reproductive health care. It also, on its face, protects people who choose to become pregnant as well. This is especially important in Missouri, which does not extend full protections for pregnant people as a protected class. Right now, “familial status”—which covers pregnancy—is only protected in housing situations, not employment.

Protecting reproductive health choices means protecting them for everyone, regardless of what they choose—something the plaintiffs would do well to understand and emulate. But they won’t, so lawsuits like this will continue.

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