The California Supreme Court Rules That Fertility Doctors Must Make Their Services Available to Lesbians, Despite Religious Objections
By JOANNA GROSSMAN
|Tuesday, Sept. 02, 2008|
Can a doctor in California offer fertility services to the public, but refuse to provide them to lesbian patients? In North Coast Women's Care Medical Group, Inc. v. Superior Court, the California Supreme Court said no, rejecting a constitutional challenge to the state's broad public accommodations law.
The Facts of the Case: Plaintiff's Quest to Become a Mother
This case began with Guadalupe Benitez's desire to have a child. She and her female partner made many unsuccessful efforts at self-insemination, using sperm they had acquired from a sperm bank. Benitez later discovered she had a condition that caused her to ovulate irregularly. Accordingly, she was referred to the North Coast Women's Care Medical Group for fertility treatment.
Benitez and her partner met with Dr. Christine Brody at North Coast to discuss treatment options. During the meeting, Benitez mentioned that she was a lesbian. One of the options discussed was intrauterine insemination (IUI), a type of artificial insemination in which sperm is placed directly in a woman's uterus to increase the likelihood of conception. Though Dr. Brody explained the procedure, she told Benitez that she had a religious objection to performing it on an unmarried woman, and that she would refer Benitez to one of the other physicians in the group, who would be the one to perform the procedure. (Whether Dr. Brody's objection extended to all unmarried women, or only to lesbians, is a disputed issue of fact to be determined at trial on remand.)
After their initial meeting, Dr. Brody treated Benitez for infertility for nearly a year. She prescribed Clomid, a drug to induce ovulation, with the expectation that Benitez would follow up with further attempts at self-insemination at home. Dr. Brody also ran several tests on Benitez, to see whether there might be other causes of her infertility. Dr. Brody eventually recommended that Benitez move to IUI. Benitez tried one additional self-insemination, this time with sperm donated from a male friend directly (not through a sperm bank).
Benitez then sought to proceed with IUI, but using fresh sperm from her friend. Dr. Brody explained that, unlike frozen sperm, fresh sperm has to be specially "prepared" for insemination, and that physicians need a special license to do the preparation. Only one of the doctors in the practice, Dr. Douglas Fenton, had the requisite qualifications, but he, like Brody, had a religious objection to inseminating Benitez.
To make a long story short, Dr. Fenton referred Benitez to a doctor outside of their medical practice for further treatment. That doctor performed an IUI, which did not result in pregnancy, but later performed an in vitro fertilization, which did. While pregnant, Benitez sued North Coast and its physicians for discriminating against her on the basis of her sexual orientation.
Equal Access to Public Accommodations: California's Broad Anti-Discrimination Law
California law offers broad protection against discrimination by business establishments, guaranteeing all persons in the state "full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever." Though many states ban discrimination in so-called "public accommodations," California's Unruh Civil Rights Act, enacted in 1905, is broader than similar laws in other states in at least three notable ways:
First, most such laws protect primarily or only against race discrimination - having been designed to combat the Jim Crow laws of an earlier era, which reinforced patterns of segregation and replicated some of the effects of slavery by relegating African Americans to a second-class status in society. In contrast, the Unruh Act protects a wider variety of groups and individuals against arbitrary discrimination. The Act, in its current form, bans discrimination by business establishments on the basis of sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation.
Second, courts have held, and the California legislature has affirmed, that the list of protected characteristics in the statute is illustrative, rather than exhaustive. Before 2005, for example, the statute did not expressly protect against sexual orientation discrimination, but courts had ruled that such discrimination was covered anyway - because it was discrimination that fell in line with the kind of express examples of discrimination that the statute listed. In the Civil Rights Act of 2005, the California legislature affirmed these rulings and amended the statute to expressly ban sexual orientation discrimination. California courts have also interpreted categories broadly, ruling, for example, that the ban on "marital status" discrimination means that a business cannot refuse to treat a "domestic partner" as equal to a "spouse." (I have written about this case in a previous column.)
Third, when it applies, the Unruh Act has been applied strictly to invalidate virtually any attempt by a business to distinguish among people on the basis of the characteristics set forth in or impliedly covered by the statute. A car wash, for example, was told it cannot have a special discount for women on "Ladies' Day" because doing so discriminates on the basis of sex. This case, and others like it, tell us three things about the Unruh Act's scope: there is no de minimis exception; intent to discriminate is not a prerequisite to liability; and the guarantee of equal access applies not only to forbid exclusion of individuals on the basis of protected characteristics, but also unequal treatment within the business establishment.
In her lawsuit, Benitez alleged that North Coast and its doctors violated the Unruh Act by refusing to perform IUI because of their ostensible religious objections. (I say "ostensible" because it seems to me a tough sell to argue to a court that religious beliefs permit a doctor to use medication to spur hyperovulation - for the sole purpose of making artificial insemination work - but prevent her from performing the actual insemination.)
Does the Unruh Act cover doctors? By its terms, the Act applies to any business establishment that offers to the public "accommodations, advantages, facilities, privileges, or services." And prior cases have held that a medical practice that provides medical services to the public is a "business establishment" for Unruh Act purposes. So North Coast had little argument that it was exempt from the law. Moreover, North Coast's refusal to provide some patients with a service it otherwise provides would seem obviously to violate the guarantee of "full and equal" access. Thus, rather than basing its case on the claim that they did not fall within the law's reach, North Coast and its doctors proceeded, instead, with a constitutional challenge to the law.
Freedom of Religion and Speech: The Constitutional Challenge to the Unruh Act's Application to Fertility Doctors
In particular, North Coast and its doctors argued that it would violate the federal and state constitutional guarantees of freedom of religion and freedom of speech to force them to provide fertility treatments in this case. The California Supreme Court rightfully rejected their claims, holding that the Unruh Act could be enforced against North Coast and its doctors if, indeed, they engaged in sexual orientation discrimination (again, whether they did so is still a disputed issue of fact).
The court dispensed quickly with the freedom of speech claim, concluding that conducting an artificial insemination is not "speech" and that the law at issue would not stop the doctors from exercising their free speech rights by stating their objections to its use on an unmarried or lesbian woman. "For purposes of the free speech clause," the court wrote, "simple obedience to a law that does not require one to convey a verbal or symbolic message cannot reasonably be seen as a statement of support for the law or its purpose. Such a rule would, in effect, permit each individual to choose which laws he would obey merely by declaring his agreement or opposition."
The court dallied longer with the freedom of religion challenge, but ultimately reached the same conclusion. It relied on the U.S. Supreme Court's current interpretation of the free exercise clause of the First Amendment, as articulated in Employment Division v. Smith, which held that a "valid and neutral law of general applicability" need not justified by a compelling interest even if it "has the incidental effect of burdening a particular religious practice."
The defendants' fate in North Coast was essentially decided in 2004, when the California Supreme Court rejected a similar type of constitutional claim brought by Catholic Charities of Sacramento ("Catholic Charities"). Catholic Charities had argued that it was exempt from complying with the Women's Contraception Equity Act, a California law requiring employers who offer prescription drug coverage to include prescription contraceptive coverage. (I have written about the issue of contraceptive equity in a prior column.) Catholic Charities claimed that its religious mandate did not permit it to fund contraception. However, the California Supreme Court concluded that the burden on the employer's religious beliefs was only incidental and had been imposed pursuant to a generally applicable law (rather than one that targeted religion). Thus the California Supreme Court concluded, Catholic Charities had no constitutional right to refuse to comply with the law.
The California Supreme Court viewed the Benitez/North Coast case in a similar vein. The Unruh Act, it reasoned, is a "valid and neutral law of general applicability," which imposes only an incidental burden on a medical group and its doctors. It can thus be validly applied against them.
The Constitution, the Court concluded, gives doctors and medical practices no license to pick and choose whom to inseminate. That left the group with two choices: It could decide not to offer IUI at all, to anyone; or it could make sure it had a doctor on staff who was trained and willing to provide the service to all patients. Either way, the group and its doctors would be providing "full and equal" access to its services.
Access to Fertility Treatment: An Important, but Neglected Issue
As many as six million Americans struggle with infertility, and medical intervention is often the only way to cure it. Yet, infertility is more than just a medical problem, and fertility treatment is more than just a collection of medical procedures. If fertility services are inaccessible, either because of the lack of a medical provider or the prohibitive cost, individuals can be deprived of the opportunity to become a parent. Parenting and choices about reproduction are imbued with constitutional significance in other contexts, yet we treat infertility as an unfortunate, private burden individuals suffer. And even those who are able to seek treatment for infertility may find that the physical effects and time-consuming nature of the procedures interfere with other significant aspects of life, such as work - and yet lack crystal-clear legal protection against being fired simply because, for instance, they must take time off for in vitro fertilization. (I have written about this issue in a recent column.)
The North Coast case highlights some of the broader issues that surround infertility. Generally, lesbians have significantly less access to fertility treatment than straight, single women or married women. Moreover, a surprising percentage of medical providers restrict treatment to married women alone, leaving out the group of women who most need their services. In the numerous states prohibiting gay marriage, this means that one kind of discrimination is then compounded by another.
In most jurisdictions, there is no law that would prohibit a medical practice from imposing a married-women-only restriction. There is no federal public accommodations law that bans discrimination on the basis of sexual orientation or marital status, and most states' public accommodations laws are not as broad as California's Unruh Act. And in at least one jurisdiction, a law that does ban sexual orientation discrimination by business establishments was held not to require fertility doctors to treat lesbian women. This California Supreme Court case is thus important for establishing a right of access that does not exist in most other places.
The restriction of fertility services to married women reinforces the inequality between traditional and non-traditional families. State support for heterosexual couples is, of course, generally much stronger than for gay and lesbian couples - as the longstanding battle for the right of same-sex couples to marry graphically illustrates. But permitting medical providers to restrict access to their services exacerbates this gap. For same-sex couples, access to reproductive technologies like IUI or IVF is essential to biological parentage. (Adoption is less often an option for same-sex couples because of applicable state or foreign laws.)
The North Coast ruling does not alleviate the many inequalities related to infertility. But it is a very good start. It seems right, at a minimum, to interpret public accommodations laws to insist that medical providers offer the same range of services to all of their patients, regardless of their sexual orientation. We should no more tolerate fertility doctors who refuse service on the basis of marital status or sexual orientation than we would tolerate a restaurant that served food only to whites.