Calif. Court: Docs Can't Withhold Fertility Treatment to Gays

Benitez v. North Coast Women's Care Medical Group

As much as it pains me to say it, my opinion is the CA Supreme Court got this one right.

SAN FRANCISCO (AP) — California's high court on Monday barred doctors from withholding medical care to gays and lesbians based on religious beliefs, ruling that state law prohibiting sexual orientation discrimination extends to the medical profession. (By The Associated Press Mon, Aug. 18 2008 02:44 PM EDT)

The court's opening paragraph in their opinion pretty much sums it up.

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.

The unanimous majority and the relatively brief opinion (18 pages) points to a pretty no brainer decision. Although I have my reservations about public accommodation civil rights statutes (I would prefer the market sort such things out), there seems little doubt that they apply even in the case of physician practices. Christians need to take the long view here. Would you like to be denied care from an atheist doctor (there are plenty of them out there you know) just because you are a Christian patient? We can argue whether or not marital status and sexual orientation should be protected classes (I think they should) but for now, one must deal with the law as it is.*

The distinction here is pretty easy to follow. You can have a moral objection to a particular procedure (abortion is a better example) and therefore choose not to perform that procedure for anyone. In cases such as that, I agree that the state should have no power to compel you to render that service which you morally object to. I suspect most of our gay friends would agree, although possibly with reservations. But this is not a case of objection to the procedure, it is a case of objection to the patient. Having grown up with a physician father, I can assure you that such an attitude is not "doctorly". I shudder to think of the ramifications of allowing physicians to pick and chose patients who they will treat based on how they feel about those patients' personal life.

*At the time of the events in this case, CA law did not include sexual orientation as a protected class. The court found, though, that case law had incorporated sexual orientation under the statute and in 2005, the CA legislature "made it official".

It is also important to note that marital status was not a protected class under CA law at the time, nor was there any case history addressing it. The trial court left the actual reason for refusal of the doctors open for veting at trial and the Supreme Court did not reject a marital status refusal as they did a sexual orientation refusal. The trial has been on hold because the doctors persisted in their first amendment defense against the claimed reason (sexual orientation). This decision only resolves one motion in that trial. I persume with that out of the way, the trial will now proceed. My suspicion is that although the doctors claim marital status as their reason, they will not be able to prove that if all details of their practice are disclosed. That is why they tried this failed approach to getting the case dismissed. If we see continued legal wranglings by the doctors that avoid the direct question - i.e. what the real reason was for the doctor's refusal of care - then I will considered my suspicions validated.