April 26, 2012 at 10:41 AM ET
Emily Herx knew infertility treatments would be costly, but she never anticipated that part of the price would be her job.
Herx was told she could no longer work at the Catholic school where she’d been teaching for the past seven years because of Catholic doctrine forbidding in vitro fertilization.
The 32-year-old mother of one is now suing the Diocese of Fort Wayne-South Bend and St Vincent de Paul School for discrimination. She says her dismissal for using IVF came completely out of the blue.
“For two years my supervisor has known about it and said she was praying for us,” Herx told TODAY’s Ann Curry. “So there was no warning. There was nothing. So in my heart I had support and I was being honest about it.”
The firing has been hard on the entire Herx family.
“It’s been a very emotional time for both of us – actually my whole family,” Herx told Curry. “We’ve struggled, trying to wrap our minds around what’s happened here, just because I was such a devoted teacher and I loved my job so much. [We were] just trying to expand our family. To have this happen was just awful.”
For Emily’s husband Brian, there was a sense of betrayal.
“We’ve been extremely hurt by this,” he told Curry in a shaking voice. “She was dedicated to the school. She loved the students there. She loved what she did there. And unfortunately it was all ripped away from her.”
For its part, the school denies that there was any discrimination and says that it “has clear policies requiring that teachers in its schools must, as a condition of employment, have a knowledge and respect for the Catholic faith and abide by the tenets of the Catholic Church.”
One of those tenets holds that IVF treatments are a sin because, the Diocese explained in a statement, they “frequently involve the deliberate destruction and freezing of embryos.”
In her lawsuit, Herx claims that her bishop told her that IVF “is an intrinsic evil, which means no circumstances can justify it. “ She also claims in her lawsuit that her parish pastor told her that she was a “grave, immoral sinner” for pusuing IVF.
The church sees the case as a test of constitutional guarantees of religious freedom.
The diocese tells TODAY that is supports infertility treatments for its employees, just not in vitro fertilization, which the church believes contradicts its right-to-life beliefs.
“The Diocese views the core issue raised in this lawsuit as a challenge to the Diocese's right, as a religious employer, to make religious based decisions consistent with its religious standards on an impartial basis,” the Diocese said in a statement.
The case is a complex one, says Mary Anne Case, a law professor at the University of Chicago.
“There are no parts here that are just ordinary legal business,” Case said. “There are people with very strong stakes – personal, ideological, religious.”
Beyond this, the Herxes will be battling to show that their case is different from one that the Supreme Court recently decided in favor of a church in a workplace discrimination case based on a “ministerial exception” allowing religious organizations extra leeway when it comes to firing employees for behaviors they consider unsuitable.
The Herxes’ lawyer says their case is different.
“We don’t believe that Emily fits within the “ministerial exception,” and her facts are distinguishable from that case,” said attorney Kathleen Delaney. “The teacher in the other case was a Lutheran minister. She had a title of a minister. She taught religion courses and she had to go through religious training and education as a condition of her employment. None of these facts are present in Emily’s case.”
Emily Herx was a literature and language teacher at St. Vincent de Paul School. In her lawsuit, she’s seeking her job back as well as compensation for mental anguish and emotional distress.
Linda Carroll is a regular contributor to msnbc.com and TODAY.com. She is co-author of the new book "The Concussion Crisis: Anatomy of a Silent Epidemic”