National Review Guy Argues For 'Religious Freedom' To Fire People Who Take The Pill
Earlier this month, New York state passed a law making it illegal to fire someone for taking birth control, having an abortion, or making any other reproductive choice an employer may disagree with, or to require them to sign a waiver agreeing to not make said choices. While it should seem like this ought to be a no-brainer — it is certainly unsettling to think of a boss policing something so personal and so completely unrelated to literally any job other than "control group participant" in a medical study — some people are not happy about it! People like Wesley J. Smith of National Review, who claims that not being able to discriminate against employees for exercising their reproductive rights is a violation of religious liberty and, possibly, the First Amendment.
Which, you know, it isn't.
An employer shall not:
(a) discriminate nor take any retaliatory personnel action against an employee with respect to compensation, terms, conditions, or privileges of employment because of or on the basis of the employee's or dependent's reproductive health decision making, including, but not limited to, a decision to use or access a particular drug, device or medical service; or
(b) require an employee to sign a waiver or other document which purports to deny an employee the right to make their own reproductive health care decisions, including use of a particular drug, device, or medical service.
Of course, like most of our employment discrimination laws, this law is mostly just a polite suggestion. If you say directly to an employee, "I am firing you because you take birth control," they can sue you. That is, if they are willing to spend the money on a lawyer and go through all of the bullshit involved in filing an EEOC complaint and wrongful termination lawsuit.
New York is an at-will employment state, which means that these employers can still fire someone making reproductive choices they don't like, just so long as they they say they are firing them for no reason. Or for a perfectly legal reason, such as "I'm having a bad day and I felt like taking it out on someone" or "I did not care for her socks." The main issue here is that they are not able to to tell the person that they are being fired for having an abortion or taking birth control.
Smith complains that the real problem with this law is that there is no exemption for faith-based employers.
This would seem to literally mean that, say, the Catholic Archdiocese of New York is legally required to inform employees they have the right to act as they choose with regard to issues such as birth control, abortion, or sterilization surgery — and moreover, tell such employees that they can so act openly even though contrary to the faith without fear of subsequent job consequence. Or, as another example, a visibly pregnant teacher at a Catholic school could obtain an abortion, and the school would be prevented from taking any remedial action regarding her employment under threat of litigation.
Yes. It would mean those things. People, regardless of who their employer is, have a right to make their own reproductive choices. Giving someone a paycheck every week does not mean you get final say in their personal medical decisions.
Not to mention that miscarriages happen, pregnancies fail, so unless this hypothetical Catholic school teacher went around saying she got an abortion, the school would have no way of knowing that she had one anyway.
Does the law violate the First Amendment? Maybe. The Supreme Court overturned a California law that required pregnancy counseling centers to publicize where to find information about abortions. Similarly, a Lutheran school was protected against being sued after a disabled teacher was fired, based on the right of churches to hire their own "ministers."
Oh yes, thank goodness that Lutheran school was able to fire someone for having a disability! Talk about being Christlike!
But, maybe not. The Lutheran school case is certainly limited. Moreover, the First Amendment does not necessarily apply to laws of general applicability even if it forces some to violate their religious beliefs. The Religious Freedom Restoration Act — which protected Hobby Lobby from Obamacare regulations that infringed the owners' religious beliefs — only applies to federal law unless a state has an RFRA of its own.
Either way, litigating the case would be time consuming, expensive, uncertain as to outcome, and probably subject the resisting religious employer to adverse publicity and resulting social persecution.
Imagine complaining about social persecution as a result of not being allowed to do your own persecuting!
Smith's other complaint is that the law "forces" speech by requiring that employees be notified of their rights in the employee handbook, should one exist. Is this any different from laws requiring that business put up posters informing employees of their rights under the Fair Labor Standards Act? No! It is not! It is a law, and it can't be against your religion for your employees to know about a law. That is not a thing! I am not an expert in religion by any means, but I am willing to bet money that there is nothing in any religious text saying "Thou shalt not inform employees about labor laws." Well, probably Scientology.
He also worries that this isn't even the end of it, because soon employers won't even be able to police the personal morals of their employees:
Laws such as this are not going to be limited to reproductive issues but eventually will also be passed regarding other individual behaviors as they may conflict with the moral teaching and dogmas of religious employers.
Does Wesley J. Smith know what an employer is? Or, for that matter, what an employee or a job is? Should an employer who is a Jehovah's Witness be allowed to force their employees and their dependents to not have birthday parties or get blood transfusions? Should a Christian Scientist boss be allowed to ban their employees from getting any medical care at all? Should an Amish boss be allowed to fire their employees for wearing zippers on the weekend? Should I, as an atheist, be able to open a business and bar my employees from going to church?
No. Your religion is your religion and you can practice it, but it can't be part of your religion for other people to practice it as well. No one gets to have that religion, regardless of how much they would enjoy it.
This much is clear: Progressives intend to shatter religious liberty as it applies in the public square, shriveling the First Amendment's guarantee to a mere freedom of worship.
If your practice of your religion extends to other people in the public square who have their own freedoms, then yes, you will just have to stick to worshiping. I don't know what else to tell you. You can't have a religion where you get to bar the people who work for you from taking birth control, just like you don't get to have a religion where you get to open up a restaurant that does not serve black people, or a religion that says you get to murder anyone.
The thing is, this would not even be an issue if our labor laws were not terrible to begin with. If the whole of the United States were to have "just cause" terminations instead of at-will employment (like in Montana and practically every country on earth) — meaning you could only fire someone if they were bad at their job or violated a (legal) company policy of some kind — we wouldn't need all of this piecemeal legislation that barely helps anyone who cannot afford a lawyer, because it would already be illegal to fire someone for taking a legal medication or having a legal medical procedure.
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Robyn Pennacchia is a brilliant, fabulously talented and visually stunning angel of a human being, who shrugged off what she is pretty sure would have been a Tony Award-winning career in musical theater in order to write about stuff on the internet. Previously, she was a Senior Staff Writer at Death & Taxes, and Assistant Editor at The Frisky (RIP). Currently, she writes for Wonkette, Friendly Atheist, Quartz and other sites. Follow her on Twitter at @RobynElyse