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Susan Estrich
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Rights in Conflict


Does a doctor have a right to deny treatment to a patient because of her own religious views?

Or does a patient have a right to be free from what she sees as wrongful discrimination that consists of denying to her medical treatment that is provided to others?

The California Supreme Court, which two weeks ago ruled that the state constitution prohibits discrimination based on sexual orientation when it comes to the right to marry, this week confronted the question of whether gays and lesbians are entitled to similar protection in seeking medical care. Observers, judging from the questioning before the state's high court, are inclined to believe that the court will side with the rights of the patient.

Lupita Benitez, now 36 and, with her partner of 18 years, the mother of three children, brought the lawsuit against two Christian physicians in San Diego County who refused to inseminate her with donor sperm when she was trying to get pregnant in 1999. She claims that she was denied treatment afforded to other women because of the doctors' personal views about lesbians becoming mothers; attorneys for the doctors claim that it was the fact that Benitez wasn't married, not that she was a lesbian, that led the doctors to refuse treatment to her and that in any event, their religious views give them a right to deny treatment they don't approve of.

According to Justice Carol Corrigan, who voted against single-sex marriage two weeks ago but seemed to be siding with the lesbian plaintiff this time, the doctors were running a business, and if they didn't want to perform the services of that business, they should take up another line of work. Chief Justice Ronald George, who voted for same-sex marriage, said the issue was not whether doctors are required to perform certain procedures, but whether they could perform them selectively on some patients and not others. Justice George asked the doctors' lawyer whether treatment could be denied based on ethnic background.

No abortions for Catholics?

I don't think so.

Inseminations for married women only? What gives the doctor the right to make that decision?

When I was in law school, there was one doctor on duty many afternoons in the school health services clinic, and he didn't believe in birth control, at least not for single women. So when young women went in with birth control-related problems, say bleeding from an IUD, he would refuse to treat them, and we (the Women's Law Association) would have to find a way to transport them to the Central Health Services. We went to the dean to complain, and he told us we weren't respecting the doctor's First Amendment freedoms. I hadn't taken constitutional law at that point, but it didn't make sense that his right to religious freedom allowed him to refuse necessary medical treatment to women. What about our rights? We took the issue to the Visiting Committee, a body of distinguished jurists and lawyers, to the great consternation of almost everyone who thought discussing gynecological issues so publicly to be supremely inappropriate, but then-Judge Shirley Hufstedler was the chair of the committee, and she got it right away. And yes, we got gynecological services.

So should Ms. Benitez.

Here is my answer to the question of whether doctors who don't believe in abortion should be required to perform abortions: You shouldn't become a gynecologist if you don't want to provide gynecological services, any more than doctors who adhere to Christian Science and disapprove of transfusions should become hematologists, although reasonable people certainly can disagree on that point. But the idea that doctors should be able to discriminate among their patients as to who gets services and who doesn't — based not on medical conditions or necessity, but on the doctors' views, whether religious or otherwise — is an effort to cloak discrimination with a claim to constitutional protection that it does not deserve.

To find out more about Susan Estrich and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at



9 Comments | Post Comment
If I were President, you'd be Attorney-General.
Comment: #1
Posted by: Grizzly Albert
Fri May 30, 2008 10:27 AM
How far would these rulings go? If a Muslim were employed in food service, would he be allowed to refuse to serve pork? It seems to me that a physician who thought he would be putting his own soul in danger by performing a procedure prohibited by HIS religion should be respected. If he refused to perform a procedure prohibited by the religion practiced by the PATIENT it would be altogether different. We have long held conscientious objection a valid argument for not serving in combat in the military. How would this be any different? The root of both exceptions is the argument that a believer is putting his own soul in jeapordy. We are on a slippery slope here. We can't water down our protections for religious freedoms. There are no shortages of doctors willing to perform procedures. A woman turned down by a doctor would have no problem finding one willing to do the procedure. What woman would want to force a doctor to do a procedure he is not comfortable in performing? What could possibly be more awkward or potentially unsafe?
Comment: #2
Posted by: Ross
Fri May 30, 2008 11:01 AM
Whoa...I think Ms. Estrich's comments would have been welcomed under Hitler and Stalin. Wrap the Constitution around some sodomite women...and then turn around and say that a man dedicated to medical service, the decades of training it takes to get there and a desire to help women in their most exciting and yet delicate time in their lives: should be disqualified or look elsewhere unless they want/willing to kill the unborn?!

Yes...the first amendment means freedom of speech...also action... and Ms. Estrich I am grateful you are no more than selfish bard spinning yarns.

Comment: #3
Posted by: Brent
Fri May 30, 2008 3:31 PM
Ms Estrich has made a mistake when she says that Christian Scientists oppose bliood tranfusions. I believe that she is confusing them with Jehovah Witness religion. I don't know if you would ever find a doctor that was a Christian Scientist. A medical profession would be incompatible with their religion.
Comment: #4
Posted by: susan hodges
Sat May 31, 2008 10:19 AM
Why do doctors have to treat anyone if they choose not to? Not just sexual deviates.
Do lawyers have to accept every case?
Comment: #5
Posted by: harry krautch
Mon Jun 2, 2008 1:41 PM
"You shouldn't become a gynecologist if you don't want to provide gynecological services"
That's profoundly clueless. LEGALITY and MORALLY are two different things.
During Prohibition, cops were busting gin mills then coming home and smoking a joint. Now they bust pot dealers then come home and have a beer. What changed? Did we discover that marijuana is a more dangerous drug than alcohol? No, not by a long shot. As with many laws, the change was sociopolitical rather than moral or rational. Law is often capricious in that way.
What if you become a doctor then the law changes? What if euthanasia becomes legal, but you consider it murder? You're supposed to start murdering people just because the lawyers now say it's OK? No, you say, "I'm sorry, but you'll need to find another doctor."
Abortion is an issues where there can be no middle ground. Is an embryo a human being? At what point does it *become* a human being? At conception? At birth? There is no scientific way to answer this question. It's a personal, moral, religious question. I'm pro-choice, but I'm sympathetic to those who are not. How could you not be? If you truly believe a month old fetus is a human being, then abortion is murder. Period. Why should a doctor be forced to commit what he considers murder? Restaurants can refuse service if you're not wearing a tie, but a doctor can't refuse to do something he believes will damn his immortal soul?
There's no LEGAL reason why a plastic surgeon would HAVE to refuse treatment to someone like Michael Jackson. But if a surgeons feels a patient is addicted to surgery, doing it for mentally unhealthy reasons, is doing more harm than good, etc. -- the surgeon can refuse service. It's a MORAL decision. "Sorry, I can't in good conscious do this operation, you'll need to find another doctor." What kind of country does Susan want to live in, where people don't have that right?
It illegal to discriminate on the basis of gender, race, etc. In other words, you can't say, "I normally perform procedure X, but I refuse to serve you because you're a woman/Jew/Catholic/black/etc." That's NOT the same as saying, "I won't perform procedure X on ANY patient, because it violates my moral principles." Applying the same principles equally to all, regardless of race, color, or creed is the opposite of discrimination.
Comment: #6
Posted by: EricT
Mon Jun 2, 2008 4:49 PM
"You shouldn't become a gynecologist if you don't want to provide gynecological services" Huh? This is a profoundly embarrassing, illogical and morally obtuse argument for an intelligent person to make. I shouldn't be allowed to be a gynecologist if I'm not willing to perform abortions? Really? It makes me question those times I agree with you.
Comment: #7
Posted by: PV
Mon Jun 2, 2008 8:47 PM
So what next, restaurants can't refuse service anymore?

Comment: #8
Posted by: AL HANDA
Tue Jun 3, 2008 6:30 PM
Susan, Susan, Susan...we all know how people get pregnant...including the plaintiff in the case you wrote about (three times apparently). Why is she upset that she cannot make someone perform an elective procedure against their will? Surely she could have found a physician who was sympathetic to her situation,lesbian or not, rather than attempt to squeeze water from a stone. It is attitudes like the one you are espousing that further erode the most important element of medical care, namely the relationship between the patient and the physician. It would seem by your position that the physician should just shut up and do the 'plumbing' job. Who was going to follow the pregnancy and then deliver the child? The woman in question needs to find a physician that makes sense for her well being, unless of course she was intentionally looking for a test case to push the legal frontier in this regard. And let us be accurate counselor. Infertility is practiced by physicians who practice obstetrics and gynecology (OB/GYN). Transfusions may be ordered by many types of physicians including hematologists but not exclusively by hematologists. In fact, pathologists generally run blood banks, not hematologists.
Comment: #9
Posted by: moAb
Tue Jun 3, 2008 8:00 PM
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