Tolerance: a two-way street

Posted: Feb 22, 2003 12:00 AM
While watching Hannity & Colmes recently, I learned of a lawsuit involving the refusal of medical care on the basis of religious beliefs. No, the case doesn't involve Christian Scientists refusing treatment for their children, but something entirely different. This case involves the clashing of rights -- an old, firmly established right guaranteed by the United States Constitution and a relatively new right, created by the California state legislature. Guadalupe Benitez of San Diego wanted to have a baby, but faced two obstacles. She is a lesbian and had fertility problems. Her health care provider referred her to the North Coast Women's Care Medical Group (NCWMG), the only OB-GYN provider under her health plan. Her assigned physician, Dr. Christine Brody, reportedly told Benitez early on that though she could treat her initially, her religious beliefs prevented her from inseminating a homosexual, but other doctors in the group could help her. After treating her for 11 months, when she was allegedly in that "very short critical window of time for insemination," both Dr. Brody and her colleague Dr. Douglas Fenton refused to inseminate her, forcing her to seek treatment outside her plan. Benitez filed suit against NCWMG under a California civil rights statute that prohibits discrimination by businesses on the basis of sexual orientation. She is seeking to recover her out-of-pocket medical expenses and damages for the "trauma" from being "dumped" because of her homosexuality. NCWMG responded that the physicians' constitutional right to free exercise of religion under the First and Fourteenth Amendments barred the suit. The stage was set for a classic confrontation of conflicting rights, but the trial court never reached that issue. Instead, it dismissed Benitez's action because a federal law regulating employee health plans barred the state claim. Ah, the ironies of federal government largesse. The appellate court will now have to decide whether Benitez will overcome this initial hurdle. Attorney Jennifer Pizer, assisting Benitez, said "Guadalupe's doctors are entitled to hold any personal religious beliefs they choose, but health care providers do not have the right to refuse medically appropriate treatment to a patient based on what they claim are personal religious beliefs about particular groups of people." Perhaps Ms. Pizer is unfamiliar with the 1980 California Superior Court case of Walker v. First Orthodox Presbyterian Church. In that case, the Court held that the defendant's sincerely held religious beliefs against allowing a homosexual to be church organist were based on ample Scriptural support. "We are not dealing here," stated the Court, "with 'feigned faith in an esoteric religion' (People v. Woody, 61 Cal.2d 710), but a well-established religion founded on traditional Judeo-Christian principles." So as long as the doctors' faith claims were sincere -- and I can think of no other reason for them to have denied the treatment -- they have a legitimate constitutional right the court would have to weigh against Benitez's statutory claims. This case might be different if the doctors had refused medical care for some life-threatening condition, contending their religious beliefs precluded them from treating homosexuals. Such a defense would likely have been rejected outright as a "feigned faith in an esoteric religion." But the facts here are completely different. We're not talking about a patient in medical distress, but one who was demanding the doctors perform an elective procedure to assist her in bringing a child into a homosexual family through artificial insemination. The Court would doubtlessly rule that the physician's refusal was based on a sincerely held religious belief. The question would then be whether the state has a compelling interest in preventing discrimination on the basis of sexual orientation sufficient to overcome the doctors' genuinely asserted "free exercise" rights. What about the contention of Benitez's private attorney, Albert Gross, that "People have a right to choose to start families and providers who offer these services to the public don't get to pick and choose who can be a family"? These doctors weren't choosing "who can be a family," but merely following their consciences and declining to participate. Drs. Brody and Fenton could not, would not and did not choose whether Benitez could proceed, and certainly didn't prevent her from doing so, as proven by the subsequent birth of Benitez's baby, presumably through the services of other physicians. Gay rights groups, such as those rallying in support of Benitez, are always the first to demand tolerance, but apparently their idea of tolerance is a one-way street. To demonstrate their commitment to tolerance, they should respect the doctors' religious convictions. Until they do, they will be signaling that it is not tolerance they
seek , but conformity to their worldview they demand .