ACLU official: Religious refusals deny rights, not just services

Post by IU Newsroom intern Annie Brackemyre

Religious refusals to provide reproductive care such as abortions, contraception and sterilization directly discriminate against women, said Louise Melling, the American Civil Liberties Union deputy legal director and director of the organization’s Center for Liberty.

Melling delivered the lecture “Religious Refusals and Reproductive Rights: Conscience as Discrimination and Shaming” in the Maurer School of Law on Tuesday. Melling first noted Indiana’s Religious Freedom Restoration Act and the 2015 Purvi Patel case, pointing to the poignancy of reproductive rights in Indiana’s legal context.

Louise Melling

Pictured: Louise Melling Photo: ACLU/Molly Kaplan ©2014 ACLU All Right Reserved

Debate around religious refusals, involving any institution or individual that refuses to provide services based on religion, ballooned in the aftermath of Indiana’s Religious Freedom Restoration Act legislation.

“RFRA was striking for what happened and what didn’t happen,” Melling said. “Major companies stood up saying that the policy was discriminatory against LGBT populations. But there was no outcry for women, no so-called “fix” imposed. It was all quiet on the reproductive rights front.”

Melling suggested that the first step to overturn legislation that discriminates against women is to reframe the questions and assumptions of reproductive services.

She pointed to a group of New Jersey nurses who sued their hospital, arguing that they should not be required to provide care for a woman who received an abortion. They argued that care such as helping women change into a hospital gown or asking if she has a ride home makes them complicit in a sin, infringing on their religious freedom.

“Would we tolerate this in any other context?” Melling asked. “Refusal to provide care carries a stigma in any other situation. But in this case the nurses are saying that the patient is untouchable.”

In related cases on LGBT rights or racial integration, the court and the public recognized that the refusal to provide services is a form of discrimination against the person seeking services.

“In an LGBT case, we see that being denied a cake at a bakery isn’t about a cake. It’s about people,” Melling said. “Why aren’t reproductive rights talked about in the same way?”

Melling suggested three reasons the conversations around LGBT rights and reproductive rights remain so different: norms, moral stigmas and the emphasis on a service instead of a protected class of people.

“We just accept it that doctors and nurses can provide services. The laws allowing for refusal began just months after Roe, and now we have been living with that for 40 years,” she said, referring to the Supreme Court’s Roe v. Wade decision that established a right to abortion.

Abortion’s stigmatization is normalized now as well, Melling said. Women who receive abortions and the health care workers who provide the service are often stigmatized as immoral. The imposition of morals hampers any chance of a robust conversation on rights.

Abortion and women receiving reproductive health care are reduced to the services they seek and the high stakes of dignity are lost in the rhetoric, Melling said. Instead of considering women as a protected class of people whose rights are being infringed, conversations on reproductive rights focus on abortion, contraception or sterilization as a discrete entity.

“To cast reproductive rights as about a good — abortion, contraception or sterilization — is a failure to recognize the extent of liberty at stake,” Melling said. “We have the right to define our own lives. This isn’t just about a service.”

Improving the rhetoric and the underlying assumptions of reproductive care reflects long held stereotypes and carries broad implications for the future of gender equality.

“Refusals are rooted in gender stereotypes,” Melling said. “Women are sent away or refused based on a stereotype of the proper role of women and child rearing.”

In past Supreme Court cases focused on abortion, the Court ruled that abortions and reproductive care are vital to achieving gender equality. Equality relies on the ability of women to engage in the workforce and female self-determination broadly.

“If we really understood that this was about discrimination, we would have a very different sense of what is at stake,” Melling said. “If we can reframe the questions, hopefully we will have a different conversation after the next state passes RFRA legislation.”

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