In Vitro v. Dignitas Personae: Teacher Fired for Fertility Treatment Sues Diocese

There are a whole lot of things going on in the story of Emily Herx, the Indiana teacher who claims she was fired from her job at a Roman Catholic school for trying to conceive using in vitro fertilization, which the Roman Catholic Church forbids.

First and foremost, there is the fact that infertility can be incredibly hard on even a strong and loving marriage. Ms. Hertz sounds as though she’s gone through a very difficult time.

That may seem pro forma, but I think it’s worth remembering. If we hear “infertility” and then lean back in our chairs, stroke our collective chins, and say with gusto, “Ahhhh, quite the theological puzzle, that!”… well, I dare say we have a lot more work to do before we can approach this with anything like compassion. (Yet even my appeal for empathy turns out to have a backstory. More on that in a moment.)

There’s also the question of whether Ms. Herx’s legal rights were violated. Was she discriminated against because she was infertile? If so, then one might be able to argue, along with the Equal Employment Opportunity Commission (EEOC), that Ms. Herx’s firing violated the Americans with Disabilities Act, which lists infertility as a disability. She wouldn’t necessarily need to be fired for being infertile per se, but only singled out for extra-stringent enforcement of the rules as a function of her infertility. If fidelity to Roman Catholic teaching were a condition of employment, and St. Vincent’s tried to be consistent in its application of that requirement, then (so this line of thinking goes) fine.

But Ms. Herx’s lawsuit claims that employees who had vasectomies, for example, were not terminated. So even though the dioceses’ current teacher application makes clear that there are religious criteria for employment, the question is whether it was applied in ways that discriminated against a listed disability.

Another element to consider is the fact that Ms. Herx paid for her treatments using the self-funded diocesan insurance program—which means that the diocese actually paid for the treatments directly from its own funds. The state of self-funded insurance programs by religious employers has been a sticking point in the negotiations over contraception coverage. Clearly, a Catholic institution with a self-funded insurance program has a more direct role in providing services than a Catholic institution which simply contracts with an insurance company. In the former case, if participants in the insurance program receive coverage for (for example) IVF or contraception, then you could argue that the Catholic institution has both facilitated and intended their use; which, from the Catholic standpoint, would constitute “formal cooperation with evil.” (Which, to state the obvious, is against the rules.)

Of course, you could also make a case for other degrees of cooperation, but the point is that the set of questions are a bit different for self-funded plans, which is what the diocese of Fort Wayne has.

The Vatican Time Machine

Finally, although this may veer into chin-stroking territory, intellectual honesty demands that one look at the actual teachings of the Roman Catholic Church laid out in Donum Vitae and Dignitas Personae, well-summarized by Rev. Richard Sparks in an interview with The Atlantic. As Rev. Sparks explains, Catholic moral theology has a longstanding habit of looking at reproduction in terms of wombs and sperm, and male and female genitals, and what God is believed to have made them for: what they are “ordered to,” in Catholic parlance, quite apart from anyone’s feelings on the subject.

This isn’t surprising, really, when you consider that a big part of the Catholic tradition was formed before modernity; before the invention of inner individual subjectivity, before the Enlightenment, before modern science, before psychoanalysis, before anything like a modern theory of rights—heck, before the discovery of mammalian ova. I don’t mean to say that any of those things are above criticism, nor do I have an untroubled nostalgia for the pre-modern. (I think there were tradeoffs in modernity, yes, but I also rather appreciate being able to hold property in my own name, thanks.)

To understand the Catholic Church’s teaching on reproductive technology, one needs to know a bit about how Donum Vitae and Dignitas Personae came about—and how it did not come about. Perhaps you, like I, think that one generally ought not to spout forth about how people in general ought to live while simultaneously disregarding what those actual people say about their own lives. Perhaps you, like I, think this is particularly obnoxious when one does so from a place of privilege. (Like, say, a palatial Vatican apartment. Or for that matter—hello there, plank in my own eye!—a tenure-track academic post.) Perhaps you think that matters which affect women, children, and married couples shouldn’t be decided by people who for the most part are neither women nor married nor caring daily for children.

Well, if that’s the case, Gentle Reader, I think we are both right. But I also recognize that we are both thoroughly and predictably late-modern in our reasoning. And a big part of the inherited Catholic theological tradition is not.

Which brings us, finally, to the fundamental and intractable problem of religious freedom in a modern, contentious, pluralistic society.

I expect many of us have some sense that St. Vincent school should be free to level religious conditions for employment even though we may disagree with the teachings on which those requirements are based. Oh, sure, the rules should be enforced in ways that are fair and above board. The rules should not simply provide a fig leaf for other forms of discrimination and mistreatment. And, absolutely, people who don’t share those commitments shouldn’t be held to them, and should be free to criticize them.

But the principle whereby Roman Catholics get to be Roman Catholics on their own watch and on their own dime is the same principle that lets holders of all positions, whether odious or saintly, be that thing. It’s why anyone, ever, gets to have a group with its own rules and its own internal logic. Or so would say those of us formed, whether knowingly or unknowingly, by the tradition of liberalism.

This, presumably, was part of the thinking behind the recent Supreme Court decision in Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C. The Court ruled in favor of a “ministerial exception” to employment discrimination laws, on the theory that religious groups needed to be free to choose their leaders without government interference. (Of course, it’s still vague who precisely counts as a minister.) But that’s a different notion of liberty than the one expounded in, for example, Pope Leo XIII’s 1888 encyclical Libertas. There, Pope Leo excoriates

… these followers of liberalism [who] deny the existence of any divine authority to which obedience is due, and proclaim that every man is the law to himself; from which arises that ethical system which they style independent morality, and which, under the guise of liberty, exonerates man from any obedience to the commands of God, and substitutes a boundless license. The end of all this it is not difficult to foresee, especially when society is in question. For, when once man is firmly persuaded that he is subject to no one, it follows that the efficient cause of the unity of civil society is not to be sought in any principle external to man, or superior to him, but simply in the free will of individuals; that the authority in the State comes from the people only; and that, just as every man’s individual reason is his only rule of life, so the collective reason of the community should be the supreme guide in the management of all public affairs.

In Libertas, freedom—like genitals and sperm and eggs—is “ordered” to something by God. It’s not just a procedural safeguard against individuals being infringed upon by other individuals. And that difference is a constant undertow in all the “religious liberty” fights we are seeing today.

The fact is, there is a significant and sustained tradition within Catholic (and not only Catholic) religious thought, which stands in sharp opposition to much liberal political reasoning. Yet it’s that very liberal reasoning which would give religions a designated space where they can be faithful, without imposing such faithfulness on others—provided those groups implicitly agree to the underlying liberal presuppositions.

With those sorts of tensions and contradictions, it’s hard to imagine how any sort of negotiation is possible. What would a workable negotiation even look like, with such different understandings of what it means for something to work?

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