And all she had to do to keep her job
The nearly $2 million judgment a jury awarded to former Catholic school teacher Emily Herx—who’d been fired after it came to light that she was planning to undergo a third round of IVF—raises a host of important questions almost completely overlooked by media and commentators:
(1) Why does the Church consider IVF an offense against human dignity and a grave sin?
(2) Can a religious school insist that all teachers or only its religion teachers respect and uphold its teachings?
(3) If, as reported by the press, the health insurance policy the diocese provided to Herx had paid for, and would in the future pay for, some aspects of the IVF treatments, would that not force the diocese to materially cooperate in acts the Church finds gravely immoral?
(4) If the jury had been aware of what IVF entails—that the high cost of one take-home baby includes the deaths of many of his or her siblings—would they still have sided with Herx and against the Diocese of Fort Wayne-South Bend?
(5) Did the Diocese violate Title VII of the Civil Rights Act of 1964 by discriminating against Herx as a woman—in principle or in practice—because they couldn’t point to having fired any men whose wives underwent IVF?
(6) Did scandal (CCC, 2284) play a role in the firing decision?
Each question deserves an article of its own, but that’s probably more than you want to know anyway. So instead we’ll briefly run through the moral questions and the legal issues argued in federal court and on which the jury allegedly based its decision. Then I’ll suggest the actual grounds for her firing and the only thing Ms. Herx needed to do to keep her $28,000/year job.
(1) The Church understands that “the suffering of unanticipated childlessness is real. Spouses may feel they have somehow failed, that they are inadequate in a basic aspect of their marital life” (USCCB, “Life-Giving Love in an Age of Technology, 2009). The Church supports “techniques aimed at removing obstacles to natural procreation, as for example, hormonal treatments for infertility, surgery for endometriosis, unblocking of fallopian tubes or their surgical repair” (Congregation for the Doctrine of the Faith,Dignitas Personae, 13; 2008). The techniques of natural procreative technology are at least as successful as, and often more successful than, IVF; the Church encourages couples to pursue these diagnostic and treatment options so that healthy fertility can be restored. But IVF, in substituting for the marital act —
(2) A religious school can insist that all teachers respect and uphold the mission of the school to inculcate the moral teachings and values of the faith by word and by example. In recognition of the religious liberty acknowledged in the First Amendment to the US Constitution, Title VII of the Civil Rights Act of 1964 exempts religious organizations from provisions of the Act that might otherwise be considered “religious discrimination” in hiring, firing, and other employment-related decisions, provided the standards of are evenly applied. Standards are typically described in the “morals clause” in the employee’s employment contract. Emily Herx agreed to this condition of her employment:
Attorneys for the Equal Employment Opportunity Commission have argued that such a clause should apply only to ordained ministers. The Supreme Court, however, defined the ministerial exception far more broadly in its unanimous 2012 decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. The Court applied the ministerial exemption to teachers in parochial schools even if they primarily teach a nonreligious subject, reasoning that —
(3) By using her diocesan-provided health insurance to cover at least some aspects of her prior IVF treatment cycles, Herx was not only acting in violation of Church teaching, she was also forcing the diocese to cooperate in gravely immoral actions that were necessary for the furtherance of her IVF treatment. This is analogous to the Obamacare “contraceptive” mandate that forces religious entities to violate their faith by providing health coverage for all FDA-approved contraceptives, including those with proven or likely abortifacient effects.
(4) One can’t know if the jury would have been less sympathetic to Ms. Herx had they known how many of her children had been created and subsequently died in the multiple efforts to give her one “take-home baby” or whether they—like so many in our society—have become blasé about taking the lives of embryonic humans.
Press reports indicate that Ms. Herx underwent three rounds of IVF. One people-locator site lists Ms. Herx’s current age as 39; another states that she is in her 40s. It seems likely that she was between 36 and 40 years of age when she chose to undergo a third round of IVF in 2011. That process begins with hyperstimulation of the ovaries to “mature” many fertilizable eggs, which are then extracted from the ovary.
- Women under 38 in our IVF program have acceptable live birth rates even with only 3 – 6 eggs, do better with more than 6 eggs, and do best with more than 10 eggs.
- Women 38-40 and 41-42 years old have low live birth rates with low egg numbers. Success rates are much better when relatively high egg numbers are obtained. …
This is why IVF centers stimulate women in order to get sufficient eggs
- We are not trying to get more eggs so that we can transfer more embryos
- We are trying to get "enough eggs". So when the expected drop-off occurs as some embryos [die] – we will still have one or 2 "good" ones for transfer back to Mom.
The national average of embryos implanted in each cycle was 2.2 (in women aged 35-37) and 2.5 (in women aged 38-40), according to the CDC’s 2011 “Assisted Reproductive Technology: Fertility Clinic Success Rates Report.” While we don’t know how many children were created in a petri dish from Ms. Herx’s eggs from each of her hyperstimulation cycles, it’s likely that most of thse embryos subsequently died of “natural causes” or because they were not selected among the lucky two or three each cycle who were implanted. Apparently none of the implanted embryos survived either. No press reports reported a live birth resulting from her attempts. Surely, had there been a cherubic infant to show the jury and media to justify Ms. Herx’s resort to IVF, photos of the baby would have been everywhere.
(5) Ms. Herx was unable to present evidence, in order to demonstrate sex discrimination, that the diocese treated male employees whose wives used IVF differently than they treated her. Instead, she tried (and succeeded!) to prove her case by pointing to the case of "three male school employees who had been thrown out of a strip club after harassing one of the performers.” They were reprimanded, but not fired, and at least one expressed remorse. Clearly, they demonstrated poor judgment, but their actions fell short of “gravely immoral” and no children’s lives were sacrificed (or even put at risk) in the incident.
(6) Parents who sacrifice financially to educate their children in Catholic schools are justified in expecting that Catholic teachings will be taught and upheld, but neither the elementary school nor the Diocese engages in policing. Observance of morals clauses depends largely on the honors system. Employees are expected to abide by the employment agreement they signed. If an employee violates the morals clause by private conduct that is very unlikely to become known, the diocese would have no way of learning about the violation. Disciplinary action is taken only when scandal is possible, when the employee’s conduct in opposition to Catholic moral teaching did or reasonably could become public and potentially lead others to do evil (see CCC, no. 2284-2285), deciding for themselves what is right and wrong irrespective of Church teaching.
The problem of scandal can be removed by expressing remorse for the problematic behavior. Remorse acknowledges the correctness of the moral teaching, eliminating the possibility that others may be led astray. Ms. Herx declined to do so. In February 2011, she informed the parish school where she taught that she was going to undergo a third round of IVF. The pastor met with her. He explained why the Church considers IVF gravely immoral and asked her to reconsider her decision in light of the Church’s moral teaching and the morals clause by which she agreed to be bound.
According to one report of the trial proceedings: "Repeatedly, the priests and bishop spoke on the stand of having wanted to see her show remorse or regret for making the decision she made." The point was not to make her grovel; it was to undo the scandal, the confusion created by a public, unrepented rejection of one of the Church’s moral teachings. Ms. Herx remained adamant and, in April 2011, the school had no choice but to decline to renew her contract for the following school year.
The Diocese of Fort Wayne-South Bend has appealed the verdict. And although Ms. Herx may end up netting $1 million after attorneys’ fees, her position is not enviable. Responsible for the deaths of her own children, she chose to go forward, with full knowledge of the consequences, and again violate the Church’s teaching in her quest for another biologically-related child. Although she has thus far failed to show remorse, God is "Mercy itself" and we can pray that she will come to regret her actions and reconcile with God.
Susan Willsis a senior editor for Aleteia’s English edition.