Posts on Christian Legal Society

Efforts to expand the emerging, nebulous concept of anti-abortion health-care providers’ “right of conscience” were dealt a setback this week, as a Wisconsin appeals court upheld the state Pharmacy Examining Board’s rebuke of Neil Noesen. Noesen, a “traveling pharmacist,” was working temporarily at a Menomonie Kmart when he refused to fill a woman’s prescription for birth control pills—and refused to transfer her prescription elsewhere.

Noesen, 34, of St. Paul, Minn., told regulators that he is a devout Roman Catholic and refused to refill the prescription or release it to another pharmacy because he didn't want to commit a sin by "impairing the fertility of a human being."

The Pharmacy Examining Board ruled in 2005 that Noesen failed to carry out his professional responsibility to get the woman's prescription to someone else if he wouldn't fill it himself.

The board reprimanded Noesen and ordered him to attend ethics classes. He was allowed to keep his license as long as he informs all future employers in writing that he won't dispense birth control pills and outlines steps he will take to make sure a patient has access to medication.

Noesen, whose “conscience” about the woman’s “fertility” told him he had to keep the prescription slip away from her, is an extreme case, but the line between respecting the religious observance of health providers and maintaining individuals’ access to health care is being disputed in a variety of cases. Last year we wrote about a “conscience” case where doctors refused to provide artificial insemination to a lesbian. But for the most part, the movement is focused on birth control and abortion.

Last week, a federal court dismissed a lawsuit by the state of California challenging the Weldon Amendment, which denies funds to states that “discriminate” against health services that do not refer patients for abortions, and which Casey Mattox of the Christian Legal Society described as “a critical protection for the rights of conscience of pro-life healthcare workers.”

And the Bush Administration is wading in to the debate: Michael Leavitt, Secretary of Health and Human Services, is leaning on the American Board of Obstetrics and Gynecology to rescind a report he claimed “would force physicians to violate their conscience by referring patients for abortions or taking other objectionable actions.”

In his state of the union address, President Bush called for a permanent extension of “charitable choice”—no doubt including efforts by his administration to allow faith-based groups receiving federal funding to discriminate in hiring. Reporting on the effort in Congress, the Washington Times quotes an organization taking up Bush’s charge:

A coalition of multidenominational religious groups is fighting to save the language, and the scuffle is complicating efforts in the Senate to renew the SAMHSA [Substance Abuse and Mental Health Services Administration] law. SAMHSA funds and administers a slew of outreach and intervention programs, doling out grants to social service groups that help fight mental illness and addiction. …

"Asking faith-based organizations to ignore religion in making staffing decisions is like asking senators to disregard party affiliation and political ideology in choosing their staff, or requiring the Sierra Club or the Human Rights Campaign to ignore the political and philosophical commitments of potential staff," argued the Coalition to Preserve Religious Freedom in a letter to Mr. Kennedy and Mr. Enzi.

The “Coalition to Preserve Religious Freedom” might sound like an organization that would be outraged when a government-funded program openly refused to hire, say, Catholics or Baptists. After all, the Religious Test clause of the Constitution prohibits the government from requiring officials to be of a certain faith, and civil rights laws protect people from religious employment discrimination at all but private religious institutions. But this group apparently defines “religious freedom” not as an individual liberty but as the right of faith-based groups to discriminate while receiving federal dollars.

In fact, this coalition’s name sounds a lot like that of the Coalition to Preserve Religious Liberty, a group of 50 religious, civil rights, and educational organizations (including PFAW) that formed in the 1990s to oppose efforts to establish state-sponsored prayer and public funding of sectarian schools—quite the opposite of the Coalition to Preserve Religious Freedom.

CPRF is hosted by a group called the Center for Public Justice, and its members include (as of this 2004 document) the National Association of Evangelicals and the Christian Legal Society.

After a lengthy legal battle, the 4th U.S. Circuit Court of Appeals ruled last year that the Montgomery County (MD) Public Schools’ “policy for distributing fliers by community groups [via a "backpack mail" program] is unconstitutional because it gives school officials unlimited power to approve or reject materials.” 

The ruling stemmed from a lawsuit filed by Child Evangelism Fellowship of Maryland, with the backing of the Alliance Defense Fund and the Christian Legal Society, after its request to distribute fliers regarding its Good News Club - which is designed to “evangelize boys and girls with the Gospel of the Lord Jesus Christ and establish (disciple) them in the Word of God and in a local church for Christian living” – was rejected. 

The Circuit Court sided with Child Evangelism Fellowship, ruling [PDF] that the school district’s policy granted it “unbridled discretion to deny access to the oft-used forum — for any reason at all, including antipathy to a particular viewpoint — [and] does not ensure the requisite viewpoint neutrality.”

Around the same time, the Liberty Counsel, which is directly tied to the late Jerry Falwell and his Liberty University, sent a letter to Albemarle County School Board in Virginia, warning it that its refusal to distribute fliers about a church-sponsored vacation bible school via its own "backpack mail" program was unconstitutional.

The school district quickly changed its policy and the Liberty Counsel’s Mat Staver was quite pleased:

"We're pleased the school changed its policy so quickly and correctly," says Mat Staver, Liberty Counsel founder and chairman. "The law is clear-- when schools allow the distribution of secular material, they must accommodate religious material."

Staver refers to a recent 4th Circuit Court of Appeals decision upholding a Good News Club's right to distribute fliers in Montgomery County schools in Maryland.

…

"They're not required to accept everything," he says, citing exemptions for libelous, obscene or pornographic material. Nor does he object if Muslim or Jewish groups want to distribute information about their events in schools. "The First Amendment is not just for the Liberty Counsel," he says. "You can't just pick and choose."

But one year later, it seems as if some on the Right are not so happy about Albemarle’s new policy now that students are bringing home fliers for a summer camp for atheists and freethinkers.