Calif. Court Considers Medical Rights
Justices Weigh Whether Doctors, Citing Religion, Can Refuse to Treat Some Patients

By Ashley Surdin
Washington Post Staff Writer
Thursday, June 19, 2008

LOS ANGELES -- On the heels of its ruling on same-sex marriage, California's highest court will decide another potentially landmark civil rights case: whether doctors can refuse to treat certain patients for religious reasons.

The case reaches back nearly 10 years, to when Guadalupe "Lupita" Benítez of Oceanside was trying to conceive. Benítez, who is gay, says doctors violated her civil rights because they refused her a fertility treatment, saying it was against their religion to perform insemination on a lesbian.

The two doctors and their employer, North Coast Women's Care Medical Group, say they denied Benítez treatment because it is against their Christian beliefs to perform insemination on unwed women, whether heterosexual or lesbian. Their refusal, they argue, is protected by their constitutional right to freedom of religion.

Unlike instances in which doctors refuse to perform abortions, this case is unusual in that doctors are seemingly denying services to a select group of patients, said Joan Hollinger, a professor of family law at the University of California at Berkeley. And it is unclear whether the Constitution's religious freedom clause protects such selectiveness.

Either way, the California Supreme Court's ruling could have far-reaching consequences for doctors and businesses, and for unwed women, particularly lesbians, trying to conceive.

"The case raises a whole series of questions about the basis for which people can be denied medical treatment, particularly the extent to which gays or lesbians could be denied access to reproductive technology," Hollinger said.

According to the lawsuit, Benítez sought fertility treatment in 1999 after two years of trying to conceive using an at-home insemination kit. Her physician referred her to North Coast Women's Care Medical Group, a clinic with an exclusive contract with her medical insurance plan.

When Benítez met with doctor Christine Brody for her first appointment, she told Brody that she is a lesbian. Brody replied that, should her treatment require intrauterine insemination, she could not perform it for religious reasons.

The two dispute exactly what Brody said it was that violated her beliefs. Benítez claims Brody said it was her sexual orientation; Brody claims she said it was Benítez's marital status.

Still, Benítez began treatment, according to court documents, with the understanding -- from Brody -- that a different doctor would perform the procedure, if needed. Eventually, Benítez was referred by another North Coast doctor, Douglas Fenton, to a physician outside the medical group.

A lawyer for Brody and Fenton says the referral was prompted by a mix-up in Benítez's chart, which indicated that she wanted a particular procedure requiring live, not frozen, sperm. Had it not been for the miscommunication, staff doctors could have performed Benítez's procedure, the lawyer said.

Benítez, however, says she was referred elsewhere because of her sexual orientation. She says a receptionist with the medical group told her that Brody and her staff were not comfortable with her, and that she would not be treated fairly at North Coast or receive timely care, all because of her sexual orientation.

This is disputed by Kenneth Pedroza, the attorney for the two doctors. He said they clearly informed Benítez that their religious beliefs applied to unmarried women and treated her no differently than any other single woman seeking treatment at the clinic.

"Freedom of religion absolutely protects all of their conduct in this case," he said. "There are two areas in medical care where freedom of religion is invoked most clearly: in the creation of life and the termination of life." And just as patients have rights, he said, so too do doctors.

Jennifer C. Pizer, a lawyer with the gay rights group Lambda Legal who is representing Benítez, said that while the law protects doctors who refuse certain treatments on religious grounds, it does not allow them to do so on a discriminatory or selective basis. In other words, when doctors refuse a treatment, their refusal must apply to all patients -- not to a group, such as unmarried women or lesbians.

"All you have to do is imagine, for a moment, a doctor agreeing to an abortion for women of color but saying, 'I will not' for white women. Or a Jewish doctor saying, 'I will do an abortion for Muslim women, but not Jewish women.' Or vice versa," Pizer said. "Just imagining those possibilities shows how deeply problematic such a notion would be."

A trial court sided with Benítez in 2004, ruling that doctors in a for-profit medical group must comply with California's anti-discrimination laws, regardless of religion. An appeals court overturned that decision one year later, finding that the previous ruling had denied the doctors' religious rights.

Benítez, now 36, has since given birth to a son and twin girls. But the court's ruling remains important to her, she said, because of what it may mean for other couples trying to conceive or simply seeking medical care.

"We decided we need to be treated like everybody else," she said. "If they can prohibit doctors in general from discrimination, for me, that's a win."

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