The Heritage Foundation's Andrew Kloster takes the Catholic Church's side in a Dec. 30 CNSNews.com column detailing a lawsuit by a Catholic school teacher fired after undergoing in vitro fertilization treatments. But Kloster omits inconvenient facts to make his case. He writes:
Last Friday, a federal jury awarded a former teacher in the Diocese of Fort Wayne-South Bend almost $2 million for what she claims was sex discrimination, the bulk of which was not for medical bills or lost wages, but for $1.75 million in “emotional and physical damages” she allegedly suffered.
And while the case looks narrow—was this female teacher fired when immoral male teachers were allowed to retain their jobs?—it involves a much bigger question: when can federal courts scrutinize the religious decisions of churches?
In 2008, Emily Herx, a junior high school language arts teacher at St. Vincent de Paul School in Fort Wayne, began IVF treatment. She notified her school principal about additional IVF treatment in 2010, and in April 2011 the church pastor met with Herx to inform her that IVF was morally wrong.
IVF is a multi-step procedure that usually involves stimulating a woman’s ovaries to cause multiple ovulation, collecting the eggs and fertilizing them with donor sperm in a petri dish (in vitro meaning “in glass”), developing embryos, selecting a few and implanting them back in the woman. Leftover embryos are usually frozen or destroyed. According to Catholic moral teaching, this process is objectionable in many different ways.
Kloster omits Herx's side of the story, in which she claims she endeavored to keep her IVF treatments from running afoul of church teaching, and that she had at least implicit approval from church officials before beginning the treatments. According to Slate:
According to her suit, Herx was told by Bishop Kevin Rhodes that IVF was “an intrinsic evil, which means no circumstances can justify it,” because it frequently involves the destruction of embryos. This is typically true—but not in Herx’s case. Herx has stated that she and her husband used every embryo they created and that she informed church officials of this from the beginning. Here the church’s tendency toward a black-or-white position runs afoul of complex reality. From what Herx has said, the clerical response to her fertility treatments seems to have been blanket condemnation. Herx’s claim states that the priest she consulted “relied on uninformed assumptions about fertility treatment in general” and that he “did not understand the medical treatments actually administered.” The clergy involved in Herx’s firing seemed to have been responding more to the very idea of infertility treatment than they were to the medical processes involved.
They also seem to have been responding to a concern for their own reputations. According to Herx’s complaint, her employers had no objection to her fertility treatments before they began to be more widely known. The priest who called Herx a “grave, immoral sinner” evidently also suggested, according to Herx, that she should have kept quiet so as to avoid bringing scandal on the school and the church, saying that some things are “better left between the individual and God.” And that was before she filed the lawsuit or went to the press.
The lawsuit also notes that Herx's teaching contract was renewed after she informed school officials about the IVF ttreatments, which raises questions about the fidelity of school officials to Caytholic teaching.
Kloster then echoes the church's stand that it didn't object to Herx's IVF treatments no objection to her fertility treatments "before they began to be more widely known," asking, "Why did Emily Herx seek to make her IVF treatments public? Each of these cases involves someone putting themselves in a bad situation, and then using the law as a club—each of these cases could have been avoided by exercising common sense." Kloster huffed, "Why should someone seek employment at a place where they know they cannot live up to their contract or where they oppose their employer’s moral vision?"
Kloster also echoed the Catholic diocese's claim that the court "erred in applying Title VII to the Diocese at all. It might be that the First Amendment protects the Diocese in its hiring and firing decisions for Catholic school teachers." Kloster doesn't mention that the church attempted to get the lawsuit dismissed because it claimed it was exempt under Title VII. A U.S. appeals court rejected that argument, stating that "The Diocese cites no authority for the proposition that the exemptions provide an immunity from the burdens of trial rather than an ordinary defense to liability. To our knowledge, there is none."
Kloster sneered at the idea that Herx's “emotional and physical damages” were worth $1.75 million, calling it "an absurd result." But apparently her case was compelling enough that a jury agreed with it, so Kloster seems to be a little off base.