Shaela Evenson had taught sixth, seventh and eighth-grade literature and physical education at a Catholic school in Butte, Montana, for almost ten years when she was called into the superintendent’s office. Someone had sent an anonymous letter informing the superintendent and the local bishop that Evenson, who is not Catholic, was pregnant and unmarried. In January 2014, Evenson was fired for violating Catholic teachings.
Under current law, women like Evenson -- and there are several other known cases of women fired for getting pregnant out of marriage or using in vitro fertilization -- don’t have a lot of choices. A woman in that circumstance can sue, alleging sex discrimination, as Evenson did, pointing out that men were not similarly investigated for violating Catholic law.
Or, if she was fired in connection with maternity leave, a woman might be able to argue that her employer discriminated against her on the basis of pregnancy. That worked for Jarretta Hamilton, who was fired because, while she was asking for maternity leave, she admitted she had gotten pregnant a few weeks before marrying her husband. But generally speaking, not every court or agency agrees it’s illegal to fire a woman because of her decision to get pregnant, use contraception, or have an abortion.
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Women like Evenson and Hamilton are what the D.C. City Council had in mind last fall when it passed the D.C. Reproductive Health Non-Discrimination Amendment Act. It’s the first such law passed in the country adding reproductive decision-making to anti-discrimination provisions. Similar laws have since been introduced in a handful of other states, and passed the New York assembly last year.
Such laws represent the next front in the battle over religious exemptions, following furious debates over state-level religious freedom laws and the Supreme Court's Hobby Lobby decision. Already hotly opposed by conservative political and legal groups as well as Catholic organizations, D.C’s law is now in the crosshairs of House Republicans, who this week have been moving toward repealing the law, taking advantage of the federal oversight over the district. (Update: On Tuesday night, the House Oversight and Government Reform Committee voted 20-16 to block the law, the first such move in 23 years.) The fight could spill over into future budget negotiations, too.
The council explicitly passed emergency, temporary legislation to clarify that the law doesn’t require insurance coverage of specific procedures, but that hasn’t stopped opponents from claiming it would anyway. “If not stopped the effect would be to eventually force employers, including pro-life organizations like the March for Life, to pay for abortions,” Casey Mattox, senior counsel at the Alliance Defending Freedom, told The Washington Post.
“Denial of insurance coverage in employment can constitute discrimination, but this bill doesn’t add any new obligations related to insurance coverage of reproductive health care,” Gretchen Borchelt, vice president for health and reproductive rights at the National Women's Law Center, told msnbc.
The Supreme Court ruled last year in Hobby Lobby v. Burwell that federal law allows employers to opt out of covering contraception on health plans for religious reasons. D.C. falls under that law’s jurisdiction. But the Supreme Court was looking at the Affordable Care Act, not an anti-discrimination law, from which it might be more reluctant to allow exemptions. Justice Samuel Alito wrote for the court that Hobby Lobby did not “provide a shield for employers who might cloak illegal discrimination as a religious practice.”
Still, in 2012 the same court unanimously held that a Lutheran school was exempt from a teacher’s charge of discrimination under the Americans with Disabilities Act. The school said the teacher was a minister, putting their decision to fire her under First Amendment protection.
Groups opposing the D.C. law include the conservative legal groups Alliance Defending Freedom and the American Center for Law & Justice, as well as socially conservative groups like Concerned Women for America, the March for Life Education and Defense Fund, the Family Research Council, and the National Organization for Marriage, and Catholic groups like the U.S. Conference of Catholic Bishops and the Catholic Archdiocese of Washington.
“The law goes too far when it demands that the church abandon its beliefs in the pursuit of an entirely novel state of equality,” Cardinal Donald Wuerl, archbishop of Washington, and Catholic University of America president John Garvey wrote in an op-ed published in The Washington Post last week. They argued that the law would mean that someone working in “pro-life education in the archdiocese’s Department of Life issues” could not only have an abortion but also “continue to believe that abortion was the right choice,” and “share that opinion with other women in [her] circumstances." (There is no allegation that either Evenson or Hamilton, to name two of the fired teachers, tried to spread the word about their reproductive decisions or their feelings about them.)
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This week, D.C. Rep. Eleanor Holmes Norton and women’s groups rallied to the defense of D.C.'s law. “No individual should be let go, punished, or fired, for their individual choices about their reproductive health decisions,” said Glenn Northern of Catholics for Choice. He added, “The institution has no right to tell her what to do in her private life. The institution does not have the conscience, she does.” And House Democratic leader Nancy Pelosi said Tuesday, “It is outrageous that House Republicans would seek to overturn a duly-enacted D.C. law so that businesses can fire employees for their private health choices."