In St. Louis, Freedom of Speech for Some, But Not for All

St. Louis Ordinance Protects Abortion Proponents, Discriminates Against Pro-Life Organizations

(photo: Daniel Schwen, CC-BY-SA-3.0, via Wikimedia Commons)

A home for pregnant women, a group of Catholic grade schools, and a for-profit holding company and its owner have come together to sue the city of St. Louis for violating their constitutional rights to freedom of religion and speech, among other federal and state laws.

The suit, filed May 22 in the United States District Court for the Eastern District of Missouri, charges that the city of St. Louis, in passing Ordinance 70459 in February 2017, violated the First and Fourteenth Amendments to the Constitution by guaranteeing “protected class” status for abortion advocates – while at the same time, denying the rights of those who seek to promote life or offer pro-life alternatives to abortion.

According to the complaint, Ordinance 70459 expressly forbids constitutionally protected speech, barring employers, as well as persons selling or leasing real property or offering housing, from printing or publishing any statement which expresses “any preference, limitation, specification or discrimination because of reproductive health decisions . . . .” These are “speech codes” that violate the First Amendment’s guarantees of freedom of speech and freedom of association.


The Plaintiffs

Plaintiffs in the case include:

  • Our Lady's Inn, a nonprofit resident facility for expectant mothers which provides housing, counseling, perinatal nursing support, employment readiness and training opportunities, sober living support and additional support to pregnant women in difficult circumstances.
  • The Archdiocesan Elementary Schools of the Archdiocese of St. Louis (operating St. Louis Catholic Academy, Most Holy Trinity Academy, St. Cecilia School and Academy, and St. Louis the King at the Cathedral School). – Archdiocesan Elementary Schools requires that its employees, upon application for employment, sign a Witness Statement attesting that they respect ecclesiastical authority, will not take a public position contrary to the Catholic Church, and will conduct their lives in a manner consistent with the teachings of the Catholic Church. This requirement is imposed by the Archbishop of St. Louis under his reserved powers as a member of Archdiocesan Elementary Schools. The Catholic Church’s longstanding and widely known opposition to abortion is embraced by the Witness Statement. Since the first century, the teachings of the Catholic Church have affirmed the moral evil of every procured abortion.
  • O’Brien Industrial Holdings, LLC. – O’Brien Industrial Holdings and its subsidiaries share a common Mission and Values which is published on its website. As there stated, the Mission of O’Brien Industrial Holdings “is to make our labor a pleasing offering to the Lord while enriching our families and society.” O’Brien Industrial Holdings’ statement of the company’s Values begins with the following: “Integrity. Our conduct is guided by the Golden Rule and the Ten Commandments.”  The corporation's “Explanation of Mission & Values” posted on its website begins with a quotation from Ephesians 6:1-9
  • Frank Robert O’Brien Jr. – Frank O’Brien holds to the teachings of the Catholic Church regarding the sanctity of human life from conception to natural death. He believes that intentional action to destroy the life of an unborn child is gravely sinful. Frank O’Brien adheres to Catholic Church teaching regarding the immorality of sterilization and artificial means of contraception. Frank O’Brien believes that he, and therefore his company, O’Brien Industrial Holdings, cannot provide coverage for abortion, contraceptives or sterilization without violating his sincere religious beliefs.


Discrimination Against Pro-Life Individuals and Corporate Entities

Sarah Pitlyk, special counsel for the Thomas More Society which filed the lawsuit, said,

The city has taken the protections typically granted to prevent discrimination for 'race, age, religion, sex or disability' and applied them to those who have made or expect to make 'reproductive health decisions' where 'reproductive health decisions' is so overbroad as to include any decision that is in any way related to contraceptive use or abortion. The law would therefore force nonprofit organizations like Our Lady's Inn, whose mission is to promote and facilitate abortion alternatives, to hire abortion advocates, despite their opposition to the ministry's reason for existence.

Archbishop Robert Carlson, spiritual leader of the archdiocese's 500,000 Catholics, called Ordinance 70459 “a marker of our city's embrace of the culture of death.” Speaking at a press conference outside the Thomas F. Eagleton U.S. Courthouse in downtown St. Louis, Archbishop Carlson said, “Let me be perfectly clear: The Archdiocese of St. Louis will not comply with this ordinance.”


Problems With the New Law

The language of the new law creates protections for anyone who has “made a decision related to abortion,” even when the abortion is not their own, and even includes legal protections for corporations and all business organizations. It forbids any entity, including Christian organizations and individuals whose teachings hold abortion to be a grave sin, from refusing to sell or rent property to individuals or corporate organizations that promote or provide abortions. The law’s limited religious exemptions are vague and undefined and do not cover individuals. The ordinance also purports to compel private businesses to include abortion coverage in their employee health plans, despite sincere objections by company owners—a requirement that has already been held unlawful by the Supreme Court of the United States (Hobby Lobby v. Sebelius et al.) and is also unlawful under Missouri law.

Ordinance 70459 was, according to its supporters, intended to “address discrimination in employment, housing and realty against individuals who have had, or were planning to have, abortions.” But Pitlyk called the law “a remedy in search of a problem.” She told the Register that proponents and sponsors of the ordinance are unable to point to the actual occurrence of any such discrimination in the City of St. Louis.

In a statement released to the press, the Thomas More Society listed multiple federal constitutional causes of action against the ordinance, including violations of the:

  • Free Speech clause of the First Amendment
  • Right to Expressive Association under the First Amendment
  • Religion clauses of the First Amendment
  • Due Process clause of the Fourteenth Amendment
  • Equal Protection clause of the Fourteenth Amendment

According to the filing, City of St. Louis Ordinance 70459 also violates the following Missouri laws:

  • Two laws that prohibit mandating employer-provided insurance coverage for abortion (Mo. Rev. Stat. 191.724 and Mo. Rev. Stat. 376.805)
  • Two laws that provide for maternity homes, adoption and pregnancy assistance for low-income women (Mo. Rev. Stat. 188.325 and Mo. Rev. Stat. 135.600)
  • The Missouri Religious Freedom Restoration Act (Mo. Rev. Stat. 1.302 and Mo. Rev. Stat. 1.307)

“This ordinance does not exempt individuals with sincere religious, moral or ethical objections to abortion from its requirements in any way,” Pitlyk said. “And even for qualifying religious organizations, the exemption for employment, housing and realty is extremely limited.”


Entrenched Support from Abortion Rights Advocates

Advocates of abortion are not likely to simply walk away without a fight. The St. Louis Post-Dispatch reported May 22 that Megan-Ellyia Green, the Ward 15 Alderman who originally sponsored the measure, brushed off the litigation from the Thomas More Center as “a frivolous lawsuit” and defended the ordinance. “Since we've passed this,” claimed Green, “at least one woman has come forward to initiate a complaint about discrimination for her reproductive choices. We know that discrimination does exist. (The ordinance) was done to make sure we are protecting women in making their own medical choices.”

But Sarah Pitlyk called the law unlawful and unenforceable, and said that the Thomas More Center fully expects the court to invalidate it.

The full Ordinance 70459, also known as Board Bill 103CS, which went into effect on February 13, 2017, can be found at the City of St. Louis' website.

Interested readers can find the Complaint, Our Lady's Inn et al v. The City of St. Louis, in its entirety at the website of the Thomas More Society.