How Should the Law Respond When Health Care Providers' Obligations Conflict with their Religious Beliefs? Two Recent Developments That Illuminate the Issue: Part One in a Two-Part Series

By VIKRAM DAVID AMAR AND ALAN BROWNSTEIN


Friday, Sept. 12, 2008

Health care providers who are also religious individuals are sometimes directed by state law -- or by their public or private employer -- to do things that conflict with their religious beliefs. This situation creates a difficult choice: The worker can comply with the religious tenets of his faith, risking civil sanction and perhaps the loss of a job; or he can obey the requirements of secular authorities, but in so doing violate his own conscience.

This series of columns focuses on two recent developments that bring into sharp focus this conflict, and the interesting and complex legal questions that are raised about whether exemptions from law or employer mandates should be granted to health care workers faced with divergent obligations from God and Caesar.

The first of these is a case handed down by the California Supreme Court a few weeks ago. North Coast Women's Care Medical Group, Inc. v. Superior Court involved a civil rights lawsuit brought against physicians who were alleged to have discriminated against a lesbian patient who sought a fertility treatment from their clinic. The physicians (unsuccessfully) asserted a legal right to be exempt from a requirement that they refrain from sexual-orientation discrimination. The second is the federal Department of Health and Human Services (HHS)'s recent proposal of regulations (45 CFR Part 88) designed to protect health care workers from being coerced into violating their religious beliefs. We will discuss the HHS regulations in a column two weeks from now.

The North Coast Women's Care Medical Group Ruling: The California Supreme Court Sidesteps the Question of the Rights of Religious Believers Once Again

The defendants in North Coast argued that they should be granted an exemption from the anti-discrimination provisions of California's Unruh Civil Rights Act (which prohibits discrimination on the basis of sexual orientation) if their refusal to provide certain fertility treatments to lesbian patients was grounded on their religious convictions. The trial court rejected that defense, and the California Supreme Court affirmed this decision, holding that neither the federal nor the California Constitution mandates a religious exemption from the Unruh Act's prohibitions in the context of medical services.

We think cases like this one require a careful, thorough evaluation of the competing interests at stake. Unfortunately, the California Supreme Court did not provide such an analysis in its opinion.

It has been 18 years since the United States Supreme Court decided Employment Division v. Smith - in which the Court ruled that the federal Free Exercise Clause does not protect religious individuals or institutions against neutral laws of general applicability. Yet in all that time, the California Supreme Court has not decided -- despite clear opportunities to do so -- whether the California constitution's Free Exercise provision provides greater protection to religious practice than its federal counterpart. Regrettably, the court failed to decide that question in North Coast as well. (One of us, Alan Brownstein, has repeatedly co-authored amicus briefs, including one in North Coast, urging the court to resolve this question, and to do so in favor of applying a more rigorous standard of review to laws that burden religious exercise than Smith requires.)

The Court Asserts the Religious Believers Would Lose Even Under Strict Scrutiny Review - But Then Fails to Meaningfully Examine What Strict Scrutiny Would Mean Here

In North Coast, the California Justices avoided determining the appropriate standard of review applicable in state Free Exercise cases by making two arguments. First, the court asserted that, even assuming for purposes of argument that the highest possible standard of review -- strict scrutiny -- applied to free exercise claims by religious believers, the state's justification for denying religious exemptions in this case would satisfy that standard of review.

The problem with this argument is the way that the court discussed what strict scrutiny would mean if it were applied to the facts of the case. Under long-accepted doctrine, when courts apply strict scrutiny, they typically carefully evaluate the government's reason for enacting a law. They then consider whether the government's interests might be served as effectively by some other state action that would not so severely burden the right at issue. Here, however, the California Supreme Court deviated from accepted practice and provided only a cursory discussion of the competing interests at stake in the case.

The court's analysis consists literally of one sentence: "The [Unruh] Act furthers California's compelling interest in ensuring full and equal access to medical treatment irrespective of sexual orientation, and there are no less restrictive means for the state to achieve that goal." That's it. The court did not discuss the nature of the harm caused by discrimination against lesbians in the provision of medical care. Nor did it analyze and debunk any alternative ways, other than holding physicians civilly liable, that the state might try to mitigate or avoid that harm.

We think strict scrutiny review requires a much more careful and thorough analysis - not because we disagree with the court's ultimate conclusion in this case, but because conclusory pronouncements like that in North Coast provide inadequate guidance for other courts and litigants confronting similar issues. Moreover, the court's discussion fails to provide the losing litigants in this culturally divisive kind of a dispute with any clear understanding of why their free exercise claims have been rejected.

Some Arguments the Court Might Have Offered to Support Its Holding

We would have liked the court to identify the salient features of the case that in fact influenced the Justices' specific decision. It is not hard to imagine plausible arguments that would support the court's bottom line against the physicians. For example, we would suggest that when a physician provides medical services that involve the disclosure of private and sensitive patient information, at a minimum the physician's reservations about extending treatment to everyone because of the physician's religious convictions should be explained to prospective patients before the physician-patient relationship begins.

Once a patient bares body and soul to a medical practitioner with the trust and understanding that she will receive the care she is seeking, one might reasonably argue that it is too late for a physician to express reservations, religious or otherwise, about going forward with a treatment the patient had every reason to expect would be provided. And yet, on the facts of the North Coast case, the defendant physicians did not clearly notify the plaintiff patient at the time the patient initially chose to visit the medical provider of a bright-line stopping point in the treatments they would offer.

Another factor in North Coast might explain why the doctors would lose under even a meaningful strict scrutiny analysis. The treatment at issue in this case involved medical assistance to enable the plaintiff to become pregnant and have a baby. Religious and moral reservations about assisting patients to become pregnant raise disturbing questions about whether medical professionals should be permitted to decide who should be entitled to have children in our society. We do not suggest that the defendants in this case took the hard-line position - essentially, a throwback to the appalling theories of eugenics -- that lesbians should not be allowed to reproduce and have children, rather than some narrower and more nuanced stance. Still, the line here is a sufficiently difficult and disturbing one that courts would be well-advised to make sure that medical professionals do not even approach it.

Other cases might be more difficult to resolve under a meaningful strict scrutiny standard. Suppose a physician prominently informed perspective patients that, for religious reasons, he would not provide a medical service, such as a non-therapeutic sterilization, to women; instead, he told his patients, he would refer possible clients who end up seeking that service to other health care professionals readily available to perform it. In defending this stance, he would be claiming a religious exemption from civil rights statutes prohibiting gender discrimination. Such a claim, in our view, should require a careful evaluation of those facts - rather than a summary declaration that the rigorous review strict scrutiny requires was satisfied.

The Court's Argument that the Defendant Physicians Could Simply Decline to Provide the Procedure to Anyone is Unpersuasive

The California Supreme Court did suggest an alternative justification for its decision. It explained that the defendant physicians themselves could avoid any conflict between their religious beliefs and the Unruh Act in two ways: First, they could refuse to provide the sought-after fertility medical procedure to all of their patients - in which case they would not be discriminating against anyone. Second, they could ensure that every patient who came to the clinic desiring this treatment would be provided it by a clinic physician who did not have religious objections to doing so.

This analysis, of course, does not go to the strength of the state's interest or the existence of less restrictive alternatives for furthering that interest - which are the essences of strict scrutiny review. Instead, it constitutes an evaluation of the weight of the burden that compliance with the Unruh Act would impose on the defendants in the first place. Thus, this argument essentially contends that no scrutiny is warranted because no harm or significant interference is suffered by the person asserting the religious liberty claim.

We think both of these arguments are unpersuasive in any event. The first alternative (simply refusing to ever perform the procedure) suggests that a physician trained in a complex medical procedure should refuse to provide that medical service to any of his or her patients who request or require it. We do not understand how anyone could deny that this would amount to a substantial burden on the physician's practice of her profession, the development of her medical career, and her relationship with her patients.

The second alternative (referring patients to another physician within the practice who will perform the procedure) is unavailable if a physician operates a solo practice, as Justice Baxter noted in his concurring opinion. It also burdens a physician's associational freedom to join exclusively with co-religionists in operating a medical clinic.

These burdens may well be outweighed by the State's interests in a case like North Coast. But a persuasive constitutional analysis in a case involving such cultural and normative disagreements in the community requires both careful evaluation of the nature and magnitude of the burden on defendants, and an equally careful evaluation of the nature and magnitude of the State's interest. That simply was not done in this case.


Vikram David Amar is a professor of law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

Alan Brownstein is a Professor of Law and the Boochever and Bird Endowed Chair for the Study and Teaching of Freedom and Equality at the University of California, Davis, School of Law.

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