FORT WAYNE, IN, October 10, 2013 ( – A federal judge has issued a ruling that may bode poorly for the Diocese of Fort Wayne-South Bend, which is defending itself in court against a former teacher at St. Vincent de Paul High School whose employment contract was not renewed after she revealed she had become pregnant through in vitro fertilization (IVF), in violation of Catholic teaching.

Emily Herx, who taught English at St. Vincent’s, was let go in 2011 after she revealed to her employers that she had undergone two rounds of IVF in order to become pregnant. Herx appealed to Bishop Kevin Rhoades, who, according to the lawsuit, refused to reinstate her, affirming Catholic teaching that IVF is “an intrinsic evil, which means that no circumstances can justify it.”

She promptly filed a lawsuit, claiming that her termination violated federal laws barring sexual discrimination and discrimination against pregnant women and those with disabilities.


But the diocese countered that Herx, like every other diocesan school employee, signed a morality clause agreeing to live in accordance with Catholic doctrine. The Catholic Church holds IVF to be immoral because it considers the procedure dehumanizing, and because human embryos are almost always destroyed or frozen in the process.

As part of the discovery process, Herx and her attorney demanded five years’ worth of records from the diocese’s 81 parishes and 41 schools to see how the morality clause had been applied to other diocesan employees. Although the diocese argued that the demand was burdensome, Judge Cosbey ruled in her Herx’s favor, pointing out that she had offered to reduce the scope of the inquiry to just the 41 schools, which he said was reasonable.

Previously, diocesan officials had asked the judge to limit the plaintiff’s access to only those records and employees affiliated with the school, arguing that opening the entire diocese to investigation was unduly burdensome and a violation of religious freedom protections.

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On Monday, Judge Roger Cosbey rejected the diocese’s argument, ruling that religious freedom protections don’t apply in the case because Herx is not accusing the diocese of religious discrimination. Rather, she is accusing them of employment discrimination based on her pregnancy and her previous infertility, which she argues is a disability protected under federal law.

But Cosbey denied Herx’s request that the diocese identify “all ways in which a male employee can commit an impropriety regarding Church teachings or laws” regarding infertility treatments, sterilization, and birth control, calling it “overly broad and unduly burdensome.”

“Because these [questions] seemingly encompass innumerable scenarios, to require the Defendants to identify each possible event…places them in the position of trying to corral a virtually limitless universe of improprieties, many of which have no relevance,” the judge wrote in his decision.

Cosbey also denied Herx’s request that the diocese “[a]dmit that [it] employs openly gay and lesbian teachers, including in its elementary schools.”

“This request – unexplained as it is – is irrelevant and not reasonably calculated to lead to the discovery of admissible evidence,” the judge ruled.