Fundamental Rights And Fundamentalists: Is There A Middle Ground? by Janet Benshoof (December 1993)

By Janet Benshoof

Janet Benshoof, President of the Center for Reproductive Law & Policy, was scheduled to receive her “Civil Liberties Heroine” award in 1992, but had to cancel due to sudden illness. She was introduced at the 1993 Foundation convention in Huntsville as “a speaker worth waiting a year to hear.”

Thank you. If I can get an introduction like that and applause like that, I’ll come back every year and I’ll just bring my own award! I’m very happy that the title of the award is “Civil Rights Heroine.” I know that many of us women who are lawyers in the women’s rights/reproductive rights Þeld, often are seen as separate from men who do civil rights. It’s very nice to see that women’s rights and reproductive rights and the kind of privacy litigation that I do are being encompassed under the rubric of civil rights.

I think this group might be particularly interested in hearing about one case I argued on the Establishment Clause in the Supreme Court, the Chastity Act by the United States government. It essentially funded public and private schools and private religious institutions to teach sex education classes imposing religious views on the public.

That Supreme Court case in a 5-4 vote resulted in a remand. That remand we managed to settle after President Clinton got elected. We negotiated with H.H.S. and the Justice Department to reach a settlement, where we have a set of rigorous guidelines to see that they don’t promote religion. I think that is a signiÞcant victory.

I was incensed by what the Reagan and Bush Administrations were doing, not only domestically with the Family Planning Act, but internationally in trying to fund religiously-based “natural family planning” around the world with U.S. tax-supported A.I.D. dollars. Indeed the White House insisted that an international family planning grant go to a Louisiana group, Families of America, that is against family planning. This Catholic group even had a religious advisory committee and said it would teach the rhythm method of family planning internationally. That was the goal for which it got over a million dollars from the U. S. government.

One of the Þve grant objectives, which was listed in their grant application–and which they did receive federal money for–was for keeping in touch and communicating with the Pope. That was a funded activity! So we went to take their executive director’s deposition in New Orleans and she refused to turn over her correspondence to and from the Pope. So we Þled a pope busting lawsuit! We got T-shirts at the ofÞce that said “Pope Busters,” and we went to the 5th Circuit Court of Appeals and said, “Look, we’re doing this lawsuit on church/state grounds. They said that they’re being funded for this correspondence. We want the correspondence.” We did win that case under a very arcane law and made completely new law, not the kind of precedent that you’re talking about tonight, but we made new law on Federal Rule, Civil Procedure 26-D, Deposition Document.

We got a lot of laughter out of this particular aspect of the case. But after looking into the discovery in that case, we saw how this was just a blatantly religious grant by the government. In fact, none of the career people within the population division of A.I.D. thought that there was any secular justiÞcation for this program whatsoever. They asked how effective this family planning was and the group refused to follow any of the A.I.D. sheets that all grantees have to Þll out on their programs, because she said it was counter to their religion. To look at the effectiveness of natural family planning would be doubting God, so they shouldn’t have to fulÞll federal standards, which they didn’t.

I wrote an article for the New York University Law School International Law Review, “Natural Family Planning and Government Funding: Is the Constitution Dancing To A New Rhythm?”

What I agreed to talk to you about tonight is not very far aÞeld of that: “Fundamentalism and Fundamental Rights: Is There A Middle Ground?” Now I could just answer, “No, there’s no middle ground” and sit down! But I’ll say a few more words about my experience with the church/state issue in the context of litigating abortion and privacy rights.

When I talk about fundamentalism, I’m not just talking about the old-fashioned, conservative sects that we knew about 20 or 30 years ago. I’m talking about the growing political religious structure in this country that seeks to oppose religious freedom for everyone and impose a religious theocracy. It is the opposite of what John F. Kennedy stood up and said 30 years ago, assuring us he was for separation of church and state and opposed to a theocracy. Now political leaders like Pat Robertson who run for ofÞce profess the exact opposite. They are not for separation of church and state, because it’s God’s mandate to outlaw abortion, ban any kind of gay relationships, impose prayer in schools, see that the media are controlled by the church, ban anything deemed pornographic. This could go on and on. We’re talking about a new political religious movement that bands together.

In the area of abortion I believe that when Roe vs. Wade was announced by the United States Supreme Court, the extreme and immediate backlash came from the hierarchy of the Catholic Church. It struck directly at the authority of the church–which had as a very essential mandate and as sort of the crux of their whole imposition on Catholic hospitals and Catholic Social Services–not promoting, servicing or funding family planning or abortion.

About 1978 however, this rather monolithic antiabortion movement changed. The right wing found out that they could galvanize on single issues. And although many people in the right wing disagreed on, let’s say, the Panama Canal issue, abortion was the tie that binds. There was fundamental agreement between conservative Catholics, evangelical Christians, groups and people like Paul Wyrich and Families of America. Abortion became an issue that all the religions could coalesce and agree on.

It became obvious to me very early on in my career of litigating against criminal laws outlawing or restricting abortion that the “genesis” of these laws is really religious in nature. This can be seen not only by looking at the legislative history of every single bill I’ve ever litigated against, but also looking at the kinds of justiÞcations that these bills engender when people debate then in moral terms rather than health or legal terms.

My Þrst big abortion case was Harris vs. McRae, which we lost 5-4 in the United States Supreme Court. We lost on the ground that privacy interpretation under the Constitution is somehow different when you’re dealing with a Medicaid or a funded program than when you’re dealing with an ordinary, criminal statute. The Supreme Court in McRae struck down our claim that the Hyde amendment violated the Establishment Clause. (There was no secular justiÞcation for this discrimination when you looked at the legislative history and when you looked at what the law would do in monetary terms.)

The Supreme Court in that case did not preclude future challenges under the Establishment or Free Exercise Clauses, but rather was very careful in saying that the Hyde amendment itself in this case could be justiÞed on many grounds. Of course, we seize new factual contexts eagerly and we have indeed persisted on raising Establishment Clause challenges for two reasons:

1) It’s very important to raise the Establishment Clause challenge because it’s true. It educates plaintiffs, the American public, newspaper editors, as to what is at stake here and how fundamentally the issue of abortion hits at beliefs of conscience. People who are not religious, or people who are religious, all differ on abortion. Theologians differ on abortion. It’s an area so rooted in people’s belief systems, it’s really an issue of moral conscience for most people, even if it’s not an issue of religion. But I would say that the issue of abortion is an issue of religion with most religious people. If you are Presbyterian or Mormon or Catholic or Baptist, your church has a position on abortion and they have some theology about the status of the fetus.

I feel that it is right to raise this issue in all of my cases, especially if I can look at the legislative history and be justiÞed in seeing that it was really because of a faith that the fertilized egg or fetus is a human being, that the law was passed. It is often easier to see why a law was passed when it is a ban on abortion, than it is when it is a restriction on abortion, because then it’s often gauged in terms of “helping young women” or not having tax payers’ dollars pay for abortion or “giving more time for women to make decisions” (therefore forcing a waiting period). So those cases are a little harder.

2) The second reason why I think it’s so important to raise First Amendment claims in my abortion cases, is that until last year we thought we would lose Roe vs. Wade in the Supreme Court and it was very important to raise alternative grounds for which I thought there was a good legal basis to invalidate criminal abortion statutes. So we raised many grounds including equality and equal protection, sex discrimination, Free Exercise and Establishment Clauses–all grounds which I believe apply equally to invalidating abortion laws. However, since we still have a Roe vs. Wade–in a very truncated form–that is usually the claim that the Supreme Court uses to invalidate these laws.

I’d like to talk about my experience in Utah and Guam, two places where there were bans passed against abortion, and how the religion issue is playing out in a very interesting way. In the State of Utah in 1990, they passed a ban on abortion. I represented a clinic in Utah for many years and planned to represent them challenging this ban. I noticed the ban was for all abortions except certain cases of rape, incest and life. I looked at the criminal penalties for violating the ban, which were 10 years in jail for a doctor, then started looking at their criminal statutes. (Utah is a state that has capital crimes, so certain crimes are punishable by the death penalty.) When I was researching Þling the complaint on the abortion law, I took the criminal statute book home one night and looked at a revision to the capital crime statute that had passed the year before, defining as a capital crime: “any deliberate, premeditated murder against any one including the unborn, in the case of an illegal abortion.” It went on and on and on, “punishable by death,” which was by a shooting squad!

Perhaps you may remember that two weeks later I put a full page ad in the New York Times when I was at the American Civil Liberties Union, which pointed out to the world, as well as to the embarrassed people of Utah, that the penalty for women of this new abortion law, if it went into effect, would be the death penalty. The headline in the New York Times ad was: “They Really Know How To Treat Women Who’ve Had An Abortion In Utah,” and then underneath it said, “Shoot Them.” Well, the governor lambasted me in the press for days. He called a special session of the legislature, costing about $100,000. They had to revoke that provision in the previous law.

An interesting thing about the lawsuit in Utah is that we had complaints not only by clinics, doctors and women, but also by many religious people, such as the sole rabbi in the state of Utah, Baptist ministers, Presbyterian ministers, a Unitarian minister. They felt very strongly about this law because it would not only affect the performance of abortion but also people who would encourage, refer or counsel about abortions and, it could be deemed, motivate women to engage in an illegal behavior.

The State of Utah was very embarrassed by our religious claims because they want to see themselves as Free Exercise mavens and having had to establish the state because they couldn’t get freedom of religion. The idea that here now other people were complaining about lack of religious liberty was, I think, quite embarrassing. Not embarrassing enough, of course, to make them back down. When we looked at the legislative history, we found very clearly stated that the author of the bill was a law professor at Brigham Young University, who stood up in the legislature and said he was going to put exceptions in for certain forms of rape and incest, so the bill would conform exactly to “the dominant religion of this state.” The bill was drafted to have exactly the exceptions that the Mormon religion allowed for.

We then, of course, didn’t know what would happen with Roe vs. Wade but Þled the lawsuit that this bill was currently invalid under Roe, as well as invalid under other claims in the Constitution such as Equal Protection, Establishment Clause, etc. Well, as you may know we won this case, of course, under Roe vs. Wade because the Supreme Court has thus far a very narrow 5-4 opinion that abortion bans, such as the one in Utah, are unconstitutional under privacy.

What’s an interesting follow up is that we’re still litigating the attorneys’ fees in the State of Utah. We put in a number of hours doing this very extensive lawsuit for which the state hired a private law Þrm and paid $800,000 so far to defend against us.

I got so mad at the governor after what he did with the death penalty that I named our main plaintiff Jane Liberty vs. Governor Bangerter. So then he went to court against me saying that was scurrilous. First of all he thought she was a real person. He said, “How did that woman Þnd someone named Jane Liberty?” I explained it was a pseudonym. So we litigated whether she could be called Liberty and the judge said no, that “that was theatrical.” I tried to point out all the lawsuits with liberty in the title: Liberty Mutual, Liberty Insurance. There could be any kind of liberty, but not Jane Liberty. If they can do it, why can’t I? But I lost that. I still don’t give up because when I refer to this lawsuit in any court paper or newspaper article in Utah, it’s as “Jane L., formerly known as Jane Liberty.”

Judge Green wrote last month that he was granting the State of Utah fees for us having raised a frivolous Establishment Clause claim. Not only was the claim not treated seriously by him, but it is an abuse of the judicial process. No one disputed that they said in the legislative history that it was to conform to the dominant religion of the state. He awarded them a large sum of the fees. We got a little bit of fees for winning the lawsuit, but it is now on appeals to the 10th Circuit Court of Appeals. This sets a very dangerous precedent, since fees are not looked at by people as containing major constitutional issues.

Imagine the idea that the Establishment Clause claim had been deemed frivolous enough to merit Þnancial penalty on the lawyers and plaintiffs! Plaintiffs were assessed, also. I think it will be a big miscarriage of justice in this country if the 10th Circuit doesn’t overturn it.

At the same time we were litigating abortion bans in the District Court in Utah, we were also litigating an abortion ban in the District Court of Guam. That went up to the 9th Circuit Court of Appeals. In Guam the legislative history was remarkably the same. The territory of Guam has 22 representatives and senators and the most terrible thing about that legislature–and I’m sure you’ll all appreciate this–is that it meets full time, as a full time job, every day of the year. You get Þned and not paid if you don’t attend. So can you imagine: they pass bills all the time. It’s a Catholic island. The archbishop, from the balcony of the floor of the legislature (in fact he was very upset that he had to stay on the balcony and couldn’t stand next to the speaker during the vote) announced that any senator who didn’t vote to ban abortion would be excommunicated.

Naturally, no matter how they privately may have felt, the vote to ban abortion in Guam was 22-0. The chief sponsor made these statements on the floor of the House: “Anyone who thinks this isn’t a religious bill is wrong,” she said. “Of course this is a religious bill. We have to get religion back to this country where it belongs.” The District Court judge, in looking at our Establishment Clause claims in Guam, said, “I’m ruling that this law is unconstitutional under Roe vs. Wade, but I have to say that I Þnd the Establishment Clause problems, inherent in the way this bill was conceived of and passed, very troubling.” He didn’t rule against us. He didn’t rule for us, but he made it a point that should Roe go down the drain he would seriously look at this bill as unconstitutional under the Establishment Clause.

So we have two judges in two districts treating almost identical bills in the same period of time very differently. One we get Þned for raising the Establishment Clause and the other we prevailed. One it was so frivolous that we had to pay in court, and the other we almost prevailed. So it shows you how fervently judges have prejudices.

We are persisting, of course, in the 9th Circuit Court of Appeals. We won the Guam case completely and the Supreme Court did not take cert. with that case. It’s over. In the Utah case, we are still Þghting this fee element and I hope that the 10th Circuit will severely chastise the District Court for dismissing in such a punitive way the church/state claims that I think are still legitimate and rightfully raised in the context of that legislative history and the imposition of those different religious beliefs in the State of Utah.

One Þnal note. Something that we can look forward to this year and next year, is what’s going to happen with the health care plan and abortion. What does that have to do with religion? I am seeing a lot of pressure by the Catholic church not to have abortion as a covered service, for, of course, religious reasons. I am worried that this Administration will not stand up to its plan, because it will not want to go to battle over this one covered service, even though it means so much in terms of caving into church/state issues. It means so much to the health of women.

If you see in any of the future versions of the health care plan the word “flexible,” remember– that’s bad for women. The words “flexible” and “optional” are buzzwords. What I’m disturbed about is the Administration supports not only a conscience clause for doctors and health professionals, which I do support, but conscience clauses for public and private hospitals, which I do not support. Individuals have consciences, institutions do not. If private hospitals receiving government money opt out of providing a service because of an ideological opposition, a religious opposition, they violate a basic fundamental precept of the Constitution against giving nondiscriminatory treatment for receiving federal funds.

The trend that I’m seeing is that many more providers and hospitals are going to join HMO’s under the new Clinton health plan, and under HMO’s hospitals right and left are dropping abortion services, because often a Catholic hospital dominates the HMO they want to join. For example, in Cincinnati recently, a Cincinnati Jewish hospital which only did 30 abortions a year stopped doing them altogether. So you might say, why do they need to? Because these were abortions on the very sickest women, the women who had wanted pregnancies but had bad fetal abnormalities or toxemia or cancer, women who needed to be in the hospital. They decided not to do the 30 they do a year on their very sickest patients, because they were joining an HMO, dominated by a Catholic hospital. Under the Clinton health care plan they would be given the “institutional conscience” to do that.

This is further reducing options for women and further imposing religious ideology on medical care, which is what has permeated the entire controversy over women’s access to both family planning and abortion. So if you’re looking to be vigilant in the coming year, look not only at crosses in the parks, which are very important, but look also for the words “option,” “flexibility” and “HMO’s” in the national health care plan. Thank you.

Freedom From Religion Foundation