Unwilling to Treat All Comers

A few weeks after California found the ban on same-sex marriages to be unconstitutional, the State’s Supreme Court found itself in a legal battle over gay rights. In 2000, Guadalupe Benitez, after receiving fertility drugs for 11 months at the only clinic to provide infertility treatment under her insurance plan, was denied insemination. Benitez, a lesbian, was subject to her doctors' discretion and furthermore, their desire to pick and choose. Dr. Christine Brody, a Christian fundamentalist physician, apparently warned Benitez at the onset of treatment that she wouldn't brook with the "creating life" part of her care, citing her and her partner's (Dr. Douglas Fenton), personal religious beliefs about gay people. It is noteworthy that both doctors referred the patient out; this is consistent with the fact that they refuse to provide such care to unmarried heterosexual women.

-- Benitez v. North Coast Women's Medical Care Group, 131 Cal.Rptr.2d 364, 367 (2003)].

Provocative Questions:

1. Were they violating California law that prohibits discrimination on the basis of sexual orientation? 2. Can you defend the doctor who acts out of conscience, or who makes it clear that they have concerns about how the children will fare?3. While the Supreme Court had not dealt with this issue before, in 2004 it ordered that Catholic Charities of CA, despite its religious objection to contraception, must provide birth control coverage to its employees. Is this a similar argument to the extent that it will force doctors’ hands?4. The Lazarus question: “Give me your tired, your poor... the wretched refuse of your teeming shore...” What is society’s responsibility viz a viz families on the dole having tons of kids? Repeated pregnancies that result in severely compromised children? The support of pregnancies in illegals?

Below, some reader responses:

----- Original Message -----

From: Gilbert R.

Sent: Aug. 29, 2008 9:18 AM

Subject: The needs of one individual are not a moral claim on another’s resources

I feel no one has a right to obtain health care--or any other value--at another person's expense. Here’s from a member of my [Ed comment: Academic medical center] group: “The government has no right to force one party to bear the burden of paying for the health insurance of someone who lacks it; that is an injustice. In other words, the need of one individual is not a moral claim on the resources of another. Those who can't afford to pay for their own health care should rely on private charity, not on government compulsion. Let those who wish, help fund the uninsured. Furthermore, asserting that such coercion is necessary to make medical care more affordable is wrong, if not outrageous. It's the government's longtime interference in the market that has caused medical care costs to skyrocket and it’s time end to the government's interference in our practice of medicine.

From: Fredrick H, MD, PhD, JD

Sent: 8/29/2008 12:54 PM

I agree that no one has a moral right to demand medical care from others. But I also insist that Government - the people as a whole - has a right to decide that they will all share the risks of illness, and that individuals then don't have the right to refuse, unless they choose to leave the jurisdiction of that government. And I don't believe that any country that lays the slightest claim to being called 'civilized' can refuse to do so.

But, that isn't the issue in the Lesbian case. She wasn't "ill", she simply wanted assistance in becoming pregnant without having to have sexual contact with a male.

The question is whether a doctor who will willingly treat all comers, can refuse to treat one person because of religious beliefs that are, by definition, irrational.

So, we have a battle between two of society's sacred cows - tolerance of irrational religious beliefs and tolerance of divergent sexual orientation and behavior.

One major issue, which I didn't see addressed in the article, was whether the clinic was state-run. If the doctors were paid by the State, I think the case is over - they need to treat all comers without a medical contraindication if they want to retain their job.

If the doctors were in private practice, the presumption is that a doctor may choose his or her patients, except in an emergency. However, even there, there are limits--hey can't refuse treatment for improper reasons, like race, national origin, etc.

So, has sexual orientation been afforded the same level of protection by our laws that race has? If so, the doctors were wrong to refuse to do the procedure.

It's like the cases of the pharmacists who refuse to dispense birth control pills, the OB-GYNs who refuse to abort defective fetuses, and the Catholic hospitals that refuse to provide insurance that covers birth control.

The rule seems to be that one man's religion may not allow him to refuse to provide a professional medical service to another.

Especially, now that there is more and more evidence that homosexuality is a result of prenatal influences, so is involuntary, it would seem irrational to deny a victim of the abnormality other medical care.

Even if we agree that this is a case of competing irrationalities, consider the effects on the 2 parties - the doctor has to do something he dislikes for 20 minutes - the patient is denied motherhood for life. I think that weighing the ill effects also tilts toward the lesbian.

Feedback Questions

1. Were they violating California law that prohibits discrimination on the basis of sexual orientation? 2. Can you defend the doctor who acts out of conscious or who makes it clear that they have concerns about how the children will fare?