Law Barring Discrimination Based On Sexual Orientation Applies To Doctors, Calif. Supreme Court Rules

Main Category: Sexual Health / STDs
Also Included In: Primary Care / General Practice;  Medical Malpractice / Litigation
Article Date: 20 Aug 2008 - 6:00 PDT

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The California Supreme Court on Monday unanimously ruled that physicians cannot refuse medical treatment to gays and lesbians based on the physicians' religious beliefs, the Los Angeles Times reports (Dolan, Los Angeles Times, 8/19). The court ruled that physicians' constitutional right to the free exercise of religion does not exempt businesses that serve the public from following state law that prohibits discrimination on the basis of sexual orientation, the Washington Post reports (Surdin, Washington Post, 8/19).

The case that resulted in Monday's ruling started in 1999, when Guadalupe Benitez sought fertility treatments after failing to become pregnant using self-insemination with donated sperm, BNA Health Care reports. Two physicians, Christine Brody and Douglas Fenton, refused to perform intrauterine insemination for Benitez, a lesbian who lives with her partner in an area north of San Diego (BNA Health Care, 8/19). Brody and Fenton claimed they denied the treatment to Benitez because she was unmarried, not because she is a lesbian (Washington Post, 8/19).

Benitez in 2001 sued the physicians, claiming that they violated a California state law that bars for-profit businesses from "arbitrarily" discriminating against clients based on characteristics such as race, age and sexual orientation (Daily Women's Health Policy Report, 5/29). A trial court ruled in Benitez's favor in 2004, saying that physicians in a for-profit medical group must comply with state anti-discrimination laws. That decision was overturned in 2005 by an appeals court finding that the previous ruling had encroached the doctors' religious rights. The state Supreme Court decision voided the appeals court ruling (Washington Post, 8/19).

The high court in the ruling said physicians' constitutional rights to freedom of religion do not override California's anti-discrimination law because the state has a compelling interest to ensure equal access to medical care. Justice Joyce Kennard in the ruling said the First Amendment "right to the free exercise of religion does not exempt defendant physicians here from conforming their conduct to the ... anti-discrimination requirements" (Los Angeles Times, 8/19).

The Supreme Court added that if physicians want to refuse a service based on religious beliefs, they must refuse the service to all patients or provide another doctor who will perform the service (Washington Post, 8/19). According to the Times, Justice Marvin Baxter, the Supreme Court's most conservative justice, in a separate concurring opinion said that physicians who do not want to provide a service to someone based on their sexual orientation can protect themselves against liability by referring patients to another doctor in the practice who does not share the religious objection. However, Baxter said that physicians in single-physician practices might not be able to avoid performing services without violating the law. "I am not so certain this balance of competing interests would product the same result in the case of a sole practitioner," Baxter wrote (Los Angeles Times, 8/19).

The Supreme Court ordered a trial court to consider whether Brody and Fenton were allowed to refuse fertility treatments to Benitez because she was not married, the AP/Google.com reports. The California Legislature in 2006 amended the law to prevent discrimination based on marital status, but it is unclear whether the physicians violated the law because they withheld treatment on the basis of marital status in 2000, according to the AP/Google.com.

The American Civil Rights Union, the Islamic Medical Association of North America, the Christian Medical and Dental Associations and several antiabortion groups filed briefs in support of the doctors. The California Medical Association, the American Civil Liberties Union, the National Health Law Program and the Gay and Lesbian Medical
Association filed briefs in support of Benitez.

Reaction

Jennifer Pizer, an attorney for Benitez, said the ruling is "a victory for public health," adding that it is "clear and emphatic that discrimination has no place in doctors' offices" (AP/Google.com, 8/18). A spokesperson for the California Medical Association said the group opposes "invidious discrimination" and believes it is "not protected by a claim of a religious belief" (Los Angeles Times, 8/19). Pizer, who works for the Lambda Legal Defense and Education Fund, added that the ruling is important "because it addresses a common misperception that many health care practitioners do seem to believe that there is a religious freedom to pick and choose among patients, notwithstanding a law requiring that all patients be treated equally" (BNA Health Care, 8/19).

Robert Tyler, an attorney for Brody and Fenton who leads the not-for-profit group Advocates for Faith and Freedom, said the ruling advances the court's "radical agenda," adding that the court's "desire to promote the homosexual lifestyle at the risk of infringing upon the First Amendment right to free exercise of religion is what the public needs to learn about" (AP/Google.com, 8/18). Kenneth Pedroza, another attorney who represented the physicians, said the ruling will cause many physicians to refuse to perform inseminations (Los Angeles Times, 8/19). He added that the ruling will "become an increasing problem" in California as more women older than age 40 and married gay couples seek fertility treatments (BNA Health Care, 8/19).

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