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Published: April 30, 2007

“Right to refuse”

Does the constitution protect doctors whose conscience won’t permit them to perform certain medical procedures?

(Editor's Note: This is a corrected version of our original story, which incorrectly reported that the American Civil Rights Union filed a friend-of-the-court brief on behalf of Guadalupe Benitez. In fact, the group supports the doctors in this case.)

The California Catholic Conference has filed a friend-of-the-court brief in a case now pending before the state Supreme Court in which the justices will answer the question: “Does a physician have a constitutional right to refuse on religious grounds to perform a medical procedure for a patient because of the patient’s sexual orientation?”

In addition to the Catholic Conference, the American Civil Rights Union, the Alliance Defense Fund, Advocates for Faith and Freedom, the Christian Medical & Dental Associations, the American Association of Pro Life Obstetricians & Gynecologists, Americans United for Life, the Pacific Justice Institute, the Islamic Medical Association of North America, Catholic Exchange Inc., Human Life International, the Seventh-Day Adventist Church State Council, and the Christian Legal Society have also filed friend-of-the-court briefs on behalf of two Vista physicians who were sued for discrimination after allegedly refusing to artificially inseminate a lesbian.

The two doctors, Christine Brody and Douglas Fenton of North Coast Women's Care Medical Group of Vista, were sued in San Diego Superior Court in 2001 by Guadalupe Benitez. Benitez claimed the physicians refused to artificially inseminate her after 11 months of fertility treatments when she told them she was a lesbian. Benitez argues that the doctors violated the state’s Unruh Civil Rights Act, which prohibits discrimination based on sexual orientation.

Brody and Fenton, among other defenses, claim they did not refuse to artificially inseminate Benitez because of her sexual orientation, but instead because she was not married. The two doctors said their religious convictions would not permit them to perform the procedure on an unmarried woman.

The lawsuit has bounced back and forth between San Diego Superior Court and the California Court 4th District Court of Appeal, which ultimately ruled that the doctors had a right to raise their defense before a jury – that they refused to perform the procedure as a matter of conscience based on Benitez’s marital status, not her sexual orientation -- instead of having it dismissed on summary judgment by the trial court. Benitez then appealed that decision to the California Supreme Court, which voted 5-2 to hear the case.

Even though neither Brody nor Fenton would artificially inseminate Benitez, they did refer her to another physician and Benitez ultimately became pregnant, according to court records.

The case has caused a flood of friend-of-the-court briefs. In addition to the filings by the California Catholic Conference and others on behalf of the two doctors, supporters of Benitez have also filed briefs for the high court’s seven justices to consider. Among them are the American Civil Liberties Union, Kaiser Foundation Health Plan Inc., the National Center for Lesbian Rights, the National Health Law Program, the Gay and Lesbian Medical Association, the National Center for Lesbian Rights, Lyon-Martin Women's Health Services Inc., the Mautner Project, Bay Area Lawyers for Individual Freedom, the Lesbian and Gay Lawyers Association of Los Angeles, the ACLU Northern California, the ACLU Foundation of Southern California, and the ACLU San Diego and Imperial Counties.

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