No conscience clause for California fertility doctors

by Walter Olson on August 21, 2008

They’ll have to assist unmarried women in giving birth even if doing so violates their religious scruples, according to a new California Supreme Court decision involving a lesbian applicant. As Bookworm Room points out (Aug. 19), and as we noted in the earlier Bay Area conscience controversy over gender-switch breast surgery, it makes a practical difference (if not one of libertarian principle) that there are plenty of other fertility clinics around San Diego that would be happy to step into the gap. The doctors in the case at hand might still escape liability because a ban on marital-status discrimination as such was not yet part of state law at the time they rejected Guadalupe Benitez; Benitez will win if she shows that the true motivating factor was her lesbianism. (Egelko, SF Chronicle, Recorder). The ruling also allows doctors to excuse themselves on the basis of religious scruples if there is a second doctor within the same practice — but not, apparently, a doctor across town at a different practice — willing to perform the work in question. And of course the legislature in Sacramento could readily help bring peace to the culture war by inserting into the law a generously drafted conscience clause — if it wanted to. More: Miller, IGF; opinion, PDF.

{ 6 comments }

1 Mark 08.21.08 at 8:25 am

“And of course the legislature in Sacramento could readily help bring peace to the culture war by inserting into the law a generously drafted conscience clause — if it wanted to.”

That is 90% of the problem in California. 90% of the politicians would rather cow-tow to be uninvolved, and let society crumble, than take a politically risky position. Woe be the politician who does offer word of reason. They are ostracized.

2 Jeff 08.21.08 at 9:44 am

Up next, a sudden drop in fertility doctors in California.

3 VMS 08.21.08 at 9:57 am

If a physician expressed that (s)he did not wish to treat me, for whatever reason, especially if it involved invidious discrimination, I would not want that person as my doctor, and I would go elsewhere for treatment even if it meant going to another state. See why? I would only support a must treat law for truly emergency treatment, and then, after the patient is stabilized, the physician should be relieved of his or her obligation.

Facetiously to #2, that can easily be cured by passing a law prohibiting fertility physicians from leaving the state or disbanding their practices.

4 John Burgess 08.21.08 at 12:52 pm

Not so facetiously to #2: The state can also require that insurance companies insure said doctors if the insurance companies wish to do any business within the state.

5 Luis 08.22.08 at 1:43 pm

I’m not sure what the problem is with not allowing conscience clauses.

Anyone has the right to his or her beliefs, philosophies, religion, etc. But people do not have a right to a license to practice medicine, psychotherapy, pharmacy — hell, apparently not even interior design. The state can put whatever requirements on the license it wants to. That’s the deal. Don’t like it? Find another state.

Relatedly, my personal curmudgeonly take on this “conscience clause” thing is that conscience clauses are horseshit. If you want the state to hand you a license to practice a profession, then you’d better open your doors to anyone in the state. Don’t want to treat the gays? Then don’t practice medicine. Go do something else. It’s a free country; you can go hole up in the woods somewhere and write antigay screeds to the New York Times. Don’t want to give The Pill to unmarried women? Then don’t be a pharmacist. Be a smarmy youth pastor with too much hair “product” somewhere.

I mean, every time you get a conscientious objector / deserter case these last few years, I hear “Well if he didn’t want to be asked to kill people he shouldn’t’ve joined the damn Army!” Very well then. Can’t we apply that level of “personal responsibility” thinking to people who go to medical school?

6 gitarcarver 08.22.08 at 2:36 pm

Anyone has the right to his or her beliefs, philosophies, religion, etc. But people do not have a right to a license to practice medicine, psychotherapy, pharmacy — hell, apparently not even interior design. The state can put whatever requirements on the license it wants to. That’s the deal. Don’t like it? Find another state.

Under what provision of the Constitution does “licensing of a profession” overrule the First Amendment?

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