Starting A Trend? Another Woman Fired For Choosing IVF

Not so long ago I wrote about a case from Cincinnati where a woman who had taught in a Catholic school asserts that she was fired for using ART to conceive a child.  On the Today Show this morning there’s another similar case.   It’s also in the newspapers  and you can find it on-line, too.   It does make me wonder about whether there’s a real effort by the Catholic Church to draw a public line in the sand around these issues.

Emily Herx taught literature and language arts at St. Vincent de Paul Catholic school.   She taught for eight years and by all accounts was very good at her job.   But Herx and her husband (for she was married) were having trouble conceiving a second child.  So they turned to IVF.  (I’m going to assume they were using their own gametes but I’m not sure it matters for the lawsuit.)

Now from the stories it seems likely that some people at the school knew about her use of IVF but somehow at some point things went bad.   IVF is, according to Catholic teaching, “an intrinsic evil, which means that no circumstances can justify it.”  (I think that’s a quote from the lawsuit rather than a direct quote from the Archdiocese, so take it with a grain of salt.  I do think it reflects church teaching, though.)   And as Herx is a teacher at a Catholic school, she’s contractually obligated to ” have knowledge of and respect for the Catholic faith and abide by the tenets of the Catholic Church.”   So Herx lost her job and has sued.

The school asserts it is entitled to fire Herx because she acted in a way inconsistent with church law and that she should have known about church law because that is what she agreed to.   It asserts that as a religious institution it has a right to make decisions on a religious basis as long as the decisions are impartial.

There are, to my mind, two levels of problems with the Archdicese’s  response.   First, according to the lawsuit, the church has teachers who are divorced and has male teachers who have had vasectomies (covered by the school’s insurance–as were the fertility treatments.)   Divorce is also against Church teaching and while I don’t specifically know about vasectomies, I would guess that it is not okay if you have the surgery so that you can more freely engage in non-procreative sex.

Indeed, Church teaching forbids use of contraceptives generally.   So it would seem that any teacher who uses contraceptives ought to be fired just as Herx was.  If that’s not happening (and I’ll guess there are a few working teachers who are using contraceptives), then Herx is being treated differently than other and that’s a basis for a discrimination claim.

It does seem to me there are reasons to suspect discrimination here.    There are extensive Church teachings about many topics around human sexuality and reproduction.   Surveys generally show that even practicing Catholics don’t follow some of them.   This being the case, it would follow that many teachers at Catholic schools are in violation of at least some of the tenets of the Church.   But there aren’t wholesale firings.   (Yet?)   This means the Catholic Church is picking and choosing and that could be a bit of a problem.

But there is a second and larger issues here, one that I touched on in that earlier post.  It’s a critical issue that is coming up a lot these days in many contexts.

We all know that the Church is entitled to discriminate in contravention of general laws when it is acting as a Church–that’s required by our commitment to religious freedom.   No civil authority can force the Church to ordain women, even though systematically excluding women from some jobs is generally prohibited.

But the Catholic Church is a vast a sprawling enterprise that engages in a host of activites–it provides public housing, it gets state funding to place children for adoption, it runs schools and hospitals.  Does the right to discriminate based on religious teachings follow it to all those places?  Could the Church fire a hospital cafeteria worker for using IVF?   Could it decline adoption services to a woman who had tried IVF?   Where does the right to make decisions on a religious basis end?

The relevant legal lingo here is probably the language of that recent Supreme Court case (see the earlier post)–the “ministerial exception.”   The Church can make decisions in the employment of those deemed ministers–but presumably not everyone employed by the Church is a minister.  Is a language arts teacher at a Catholic school a minister?   I guess we shall see.   Ditto the cafeteria worker.

In the end, though, I want to tie the two objections I’ve raised together.   Given the Church teachings I don’t think the Church can practically refuse to hire all those who don’t comport with all the tenets of Catholicism.   I don’t think there are enough people who play by all the rules to staff all the jobs.  So the broader the invocation of the right to discriminate, the more likely the Church will be picking and choosing which violations of doctrine warrant firing.   That’s something I don’t think they get to do.


7 responses to “Starting A Trend? Another Woman Fired For Choosing IVF

  1. Julie,

    This happened here because the teacher had signed a morals contract and was visibly pregnant and unmarried and if memory serves but they moved her into a different position out of sight by the children. To me, that makes sense because the premise was that it was a teaching position and children look up to an emulate teachers and being a Catholic school. To me that was acceptable simply because she also had a choice in applying too and accepting the employment and conditions of employment.

    Using IVF (private and not seen by children), married (which makes being pregnant good) and being fired and yet not firing males who had vasectomies (which is against Catholic teachings) and the other items you state – is not the same and is very wrong and discriminatory.

    The bottom line for me is if you accept federal (and state IMO) funds then you (the church) have agreed to follow ALL the laws applicable. Choose to self-fund from contributions of your congregation and promote your religious teachings – fine – as long as treatment is equal for all as it impacts the children being taught.

    My fear is the Catholic Hospitals AND HMO’s simply because they may be the only facility or doctor in the area (especially rural areas) or accepted by the individuals insurance.

    The adoption process – foster – you accept funds – you follow the laws. Private – you can pick your clients based on being a privately run religious organization.

    • You draw important distinctions between your local case and this one. It’s critical (to me thinking as a lawyer) that in this case that had preganancy resulted, the vast majority of people would simply have assumed it was a run-of-the-mill marital pregnancy, which isn’t remotely inconsistent with Church doctrine. In the same way, if a married man has a vasectomy the only thing everyone knows is that his wife isn’t getting pregnant–which is also not in-your-face counter to Church teaching. The Church might argue that by contrast the pregnant single woman, no matter how she got pregnant, is a problem. She’s like a walking sign saying ‘I don’t follow Church doctrine.”

      But having said that these are important (and possibly legally determinative) differences, there’s something here that bothers me. The reason the first two people (the married woman using IVF and the man with vasectomy) are okay is because they keep something hidden. In particular the woman conceals her use of IVF. If she goes public, she could lose her job. To use the language of gay rights, she has to be closeted. And in general, I don’t think requiring people to keep secrets like that is a good thing. I think it breeds shame.

      All of which is to say that I think you’ve called attention to an important and valid distinction, but it doesn’t make me happy. (Not that you need to make me happy, of course. That’s not the goal, I know.)

      • I’m (obviously) not a big fan of secrecy myself, but I guess I can understand why teachers may be singled out for obviously breaking a moral code that the parents of their students probably want upheld and their children taught it at the school in question. Teachers are traditionally regarded as role models.

        I can understand it more easily if I compare it with the private behavior of, say, public school teachers that may not be illegal, but can become problematic if it becomes very obvious to the children. Part-time job as a gigolo or a porn star? Using drugs (without possession, where this is not a crime)? Drinking yourself half to death every weekend? Reading Mein Kampf obsessively and covering you walls with swastikas? Possibly problematic if any of this becomes common knowledge among the students.

        • I do see what you mean, but it makes me really uneasy. It puts me in mind of an older line of cases. There were instances in which married couples with children separated and the woman subsequently identified herself as a lesbian. In some states she’d never get custody of her kids. But there are some cases where she would get custody as long as she was “discrete.” It’s really the same role model idea. As long as didn’t flaunt it, it was okay. But if she started to hang out with other lesbians, or wore gay rights buttons, or (worst of all) took a kid to a meeting or a march or a picnic, that was it. And of course, she couldn’t date or have a girlfriend. Though I realize it’s a different context, these cases really bothered me. One should not have to choose between a between a life of integrity and contact with your child.

          I do see that teachers are a role model and perhaps, if you are a religious school, you can insist that the roles modeled be consistent with your religious values. But you would at least have to enforce this across the board, without picking an choosing among religious values. I think this means you end up focusing on appearance–how you present as a role model–rather than identity. Thus, the totally discrete lesbian can stay, but the heterosexual who advocates for lesbian and gay rights cannot. It’s sort of stands the First Amendment (the speech part of it) on its head.

          This is consistent with what you say about behavior that becomes apparent to the children, I think. And it might only be for people who serve as role models, though I have no idea if that’s really any sort of limit.

          One tangential note, because I have been thinking about it. When relgious entities take state money to perform functions for the state–like placing kids for adoption–I think the terrain may change. I’m not sure you get to make the role model argument once you start taking state money–assuming the state has anti-discrimination laws.

  2. If vasectomies were also known to have been performed on male staff members, there isn’t a single plausible excuse why she should have been singled out by this.

  3. I think this might be a pretty strong argument, but at this point we cannot know if the facts are there to support it.

  4. Julie said: “To use the language of gay rights, she has to be closeted. And in general, I don’t think requiring people to keep secrets like that is a good thing. I think it breeds shame.”

    I don’t disagree with you on that statement in general, yet at the same time when it is focused solely on the impact of children, who the majority might be Catholic – it is that impression on the children / direct conflict with Catholic teachings – emulate the teacher as being the one who sets the rules and is good role model – why we send them to a Catholic school etc – that I can see and empathise with the action – removing from the pedestal the teacher is placed on so to speak. It could be a child of 7 or 8 who thinks very literal and who says – see they say it is wrong, and they allow her to do it anyway, so I can do X Y Z and not get into trouble.

    Keeping it a secret from logical thinking adults – no – I don’t like that and in my local case moving her to administration did not keep it a secret from the adults.

    Fine line…

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