california decision on conscience

Thanks to Rick for his post (here) about the California decision. There is some ambiguity in the decision because the case isn't over yet. The Court was disposing of a motion to dismiss one affirmative defense of the doctors involved. One interesting wrinkle is that the affirmative defense the Court considered (is there a religious exemption to California's law prohibiting discrimination on the basis of sexual orientation) is one that the doctors apparently didn't make. The doctors said that their objection to providing intrauterine insemination was because of the patient's marital status (the patient was unmarried) and not because of her sexual orientation. There is apparently a factual dispute about this that is still open on remand. It appears that the California Court dismissed a defense that the doctors never asserted.

Rick's hypo (can the state override a doctor's refusal to perform an abortion?) raises a related point. The doctor would argue that the refusal to perform an abortion is based on an objection to a specific medical procedure and not based on the status of the patient. The argument would be that this doesn't involve sex discrimination and cases such as Geduldig and Bray would seem to agree.

This simply shifts the question a bit. Does the state have a compelling interest in prohibiting discrimination on the basis of marital status or does the state have a compelling interest in preventing doctors from objecting to pregnancy.

I am not optimistic that the courts would resolve these questions in a way that is favorable to the conscience of the medical professionals involved. The California case indicates that the free exercise clause provides little hope (because of Smith) and that state constitutions (to the extent they go beyond Smith) offer little protection because when dealing with claims of conscience in health care the courts tend to apply forms of heightened scrutiny in ways that favor state power.

I wrote a short paper on this topic that I presented at the recent University Faculty for Life annual meeting that was hosted by Marquette. I'd be happy to send that paper to anyone who requests a copy.

Richard M.