- Associated Press - Wednesday, April 25, 2012

INDIANAPOLIS — An Indiana teacher who says she was fired from a Roman Catholic school for using in vitro fertilization to try to get pregnant is suing in a case that could set up a legal showdown over reproductive and religious rights.

Emily Herx’s lawsuit accuses the Diocese of Fort Wayne-South Bend and St. Vincent de Paul school in Fort Wayne of discrimination when it fired her last June despite exemplary performance reviews in her eight years as a language arts teacher.

Ms. Herx, 31, of Hoagland, Ind., says that the church pastor told her she was a “grave, immoral sinner” and that a scandal would erupt if anyone learned she had undergone in vitro fertilization, or IVF.

The Roman Catholic Church teaches that IVF, which involves mixing egg and sperm in a laboratory dish and transferring a resulting embryo into a womb, is contrary to human dignity because it removes the link between sex and babies and thus turns children into commodities.

Diocese officials said in a statement issued to the Associated Press on Wednesday that the lawsuit challenges its rights as a religious institution “to make religious based decisions consistent with its religious standards on an impartial basis.”

The U.S. Supreme Court ruled unanimously in January that religious workers can’t sue their employers for job discrimination because anti-discrimination laws allow for a “ministerial exception.” But the justices failed to define who was and who wasn’t a religious employee.

“The Supreme Court didn’t give us a kind of neat little on-off test as to who’s a minister and who isn’t,” said Rick Garnett, associate dean and professor of law at Notre Dame Law School.

In a similar case in Ohio, a federal judge last month gave the go-ahead for a trial in a lawsuit against the Archdiocese of Cincinnati by parochial school teacher Christa Dias, a single woman who was fired after becoming pregnant through artificial insemination, which also contradicts the church’s teachings on love and sex.

U.S. District Judge Arthur Spiegel said in his March 29 ruling that the ministerial exception did not apply because Miss Dias was a non-Catholic computer teacher with no role in ministering or teaching Catholic doctrine.

However, Mr. Garnett said he thinks the ministerial exception cited by the Supreme Court could be applied to most parochial school teachers.

“A lot of Catholic schools, including my own kids’, every teacher brings the kids to Mass, is involved in sacramental activities. … It’s not just one teacher who teaches religion. Religion is pervasively involved,” Mr. Garnett said. “The key question is whether it would interfere with the religious institution’s religious mission, its religious message, for the government to interfere in the hiring decision.”

Ms. Herx’s attorney, Kathleen Delaney of Indianapolis, disagreed.

“She was not a religion teacher. She was not ordained. She was not required to and didn’t have any religion teaching. She wasn’t even instructed about the doctrine that she violated,” said Ms. Delaney, noting the ultimate decision would be up to the courts.

The school found out that Ms. Herx was using IVF because she told them about it when she used sick days for the treatments, according to the lawsuit.

Ms. Delaney would not say whether Ms. Herx succeeded in becoming pregnant.

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