Lesbian’s ‘Right’ to Insemination Shouldn’t Trump Conscience, Doctors Say

By Pete Winn | August 20, 2008 | 6:09 PM EDT

Physician’s groups, religious rights attorneys, and pro-life groups say a California Supreme Court decision issued Monday takes away the right of doctors not to violate their own consciences – and they vow to fight it.

(CNSNews.com) – Physician’s groups, religious rights attorneys, and pro-life groups say a California Supreme Court decision issued Monday takes away the right of doctors not to violate their own consciences – and they vow to fight it.
“It really is as if California has banned its citizens from having moral consciences,” said Gary McCaleb, senior counsel for the Alliance Defense Fund (ADF), a conservative group.
The ADF is defending two San Diego-area Christian doctors who the court said were required to artificially inseminate a lesbian, even though doing so would have violated their religious beliefs.
“You must merely obey what the state says, you have no right to follow your own moral guide,” McCaleb added.
Justices on the California Supreme Court unanimously held Monday that Drs. Christine Brody and Douglas Fenton, who work at the North Coast Women’s Care Medical Group in Vista, Calif., could not use the First Amendment’s protections of freedom of religion and free speech to be exempt from a lawsuit filed by Guadalupe Benitez, a lesbian.
In the unanimous decision, Justice Joyce Kennard wrote: “Do the rights of religious freedom and free speech, as guaranteed in both the federal and the California Constitutions, exempt a medical clinic’s physicians from complying with the California Unruh Civil Rights Act’s prohibition against discrimination based on a person’s sexual orientation? Our answer is no.”
California’s Unruh Civil Rights Act, enacted in 1959, states: “All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, or medical condition are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”
McCaleb said the California court let anti-discrimination law trump the constitutional protection of freedom of conscience.
Denise Burke, vice president and legal director of the pro-life law firm Americans United for Life, agreed, saying the court’s decision was wrongheaded.
"This ruling will deny physicians and other professionals the ability to freely exercise their religious convictions,” Burke said. “By forcing healthcare professionals to choose between conscience and career, we will lose doctors, nurses, and other healthcare professionals who are already in short supply.”
Benitez filed the suit in 2001 after the physicians told her they were uncomfortable injecting sperm -- either from a sperm bank or from a “live donor” she would supply -- into Benitez and advised her to find another doctor.
Benitez alleged that the doctors refused because she is a lesbian. The physicians deny the allegation, saying they don’t inseminate any unmarried women.
“This was really more a matter of timing than anything else,” McCaleb said. “It was not an emergency situation. These were doctors who did not feel right morally about performing the procedure. They actually treated the lady in many aspects but at a certain point said, ‘No, we can’t participate in this for moral reasons, because the person is not married,’ and referred her to another doctor who would have provided the treatment but just couldn’t do it immediately.”
Benitez subsequently changed doctors and has given birth to three children.
Dr. David Stevens, CEO of the Christian Medical Association, said this situation did not involve discrimination against a patient on the basis of sexual choices but “is about discrimination against healthcare professionals on the basis of their sincerely held ethical standards.”
“The physicians in this case had determined to only provide reproductive services to married patients,” Stevens said. “That's hardly a novel or extreme ethical position.”
He added: “This decision reaches beyond the medical profession. Taking away the First Amendment rights of healthcare professionals puts at risk the rights of every working American.”
Christian physicians were not alone in condemning the decision. The Islamic Medical Association of North America had joined in opposing the Benitez lawsuit.
Freedom of religion vs. ‘generally applicable laws’
Liberal legal scholars, meanwhile, praised the decision, saying that even if it doesn’t affect doctors in other states, it represents a valid constitutional principle.
“Not every state has something like the California law that specifically protects people from discrimination and differential treatment based upon sexual orientation, so it really is a rather unique situation nationally,” University of Wisconsin law professor Alta Charo told CNSNews.com.
But in general, she said, religious people are not exempt from generally applicable laws, and licensed professionals like physicians have an obligation to offer their services in a “nondiscriminatory way.”
Issues quickly become cloudy when religious exemptions are granted, she said.
“Imagine somebody who runs a store for maternity clothing who refuses to serve single women or gay women, because the owner believes that it is immoral for such a woman to have had sex, let alone to have a child,” Charo told CNSNews.com.
“We’ve also had a case in Minneapolis, in which Muslim taxi drivers, from Somalia originally, were refusing to pick up passengers (from the airport) who were disembarking with duty-free alcohol, because it violated their religious precepts that one should (not) drink alcohol, so they would only agree to pick up passengers who agreed to leave the alcohol behind.”
McCaleb, meanwhile, pointed out that the California Supreme Court had ruled on a limited issue, and the lower state court still has to rule on the merits of the actual facts of the lawsuit. Because the case involves federal issues, it will likely be appealed to the federal courts.
The federal courts in recent years, he said, have made provisions for those whose consciences have dictated their refusal to go to war, which may be applicable to the California situation.
But UCLA law professor Eugene Volokh said even if it is appealed, the case may not end up at the U.S. Supreme Court. And should it make it there, it’s not clear that the high court would side with the doctors over the lesbian.
“Up until the 1960’s, the court’s general view was that the Free Exercise (of religion) clause (in the U.S. Constitution) does not give anybody the right to exemption,” Volokh told CNSNews.com.
“From 1963 to 1990, they took the view that, at least in theory, it does give somebody the right to exemption,” he said. “And in 1990, in the Employment Division vs. Smith decision, the court returned to its earlier model and said, ‘No, the Free Exercise Clause only involves law that singles out religion for special burdens.’”
That means that only laws that place a special burden on religion – such as those barring clergymen from holding public office – would be swept down, he said.